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Full text of "Annual Report Workers' Compensation Appeals Tribunal 1990"

Workers' Compensation 
Appeals Tribunal 

Tribunal d'appel 

des accidents du travail 




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Annual 
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ANNUAL REPORT 
1990 




Ontario Workers' Compensation Appeals Tribunal 
505 University Avenue 
7th Floor 
Toronto, Ontario 
M5G 1X4 



ISSN: 1181-6031 
©1991 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/annualreport1990onta 



Annual Report 1 990 



Contents 



INTRODUCTION v 

REPORT OF THE 
TRIBUNAL CHAIR 

THE TRIBUNAL'S PERFORMANCE: 

CHAIR'S ASSESSMENT 1 

THE COOPERS & LYBRAND REVIEW 5 

THE TRIBUNAL'S REVISED 

SENIOR MANAGEMENT STRUCTURE 6 

INFORMATION TECHNOLOGY 7 

CHANGES IN THE 

DRAFT-DECISION REVIEW PROCESS 7 

MEDICAL MATTERS 8 

BILL 162 AMENDMENTS: 

UPDATE ON TRIBUNAL INVOLVEMENT 9 

SECTION 86n AND THE FINAL SAY ISSUE: UPDATE 9 

HIGHLIGHTS OF THE 1 990 CASE ISSUES 1 

The Compensable, Work-injury Relationship 1 

Occupational Disease 10 

Occupational Stress 11 

Chronic Pain and Fibromyalgia 12 

Pension Assessments 1 4 

Worker versus Independent Operator 1 5 

Transfer of Costs Between Employers 1 5 

Experience Rating 15 

Penalty Assessments 1 6 

Canadian Charter of Rights 1 6 

Other 1 7 

JUDICIAL REVIEW ACTIVITY 17 



THE TRIBUNAL REPORT 

THE APPEAL PROCESS 19 

VICE-CHAIRS, MEMBERS AND STAFF 19 

TRIBUNAL COUNSEL OFFICE 1 9 

Intake 19 

Case Description Writers 1 9 

Pre-hearing Legal Workers 20 

Lawyers 20 

Medical Liaison Office 20 

Post-hearing Legal Workers 21 



Page iii 



Annual Report 1990 



INFORMATION DEPARTMENT 22 

Publications 22 

Library Highlights 22 

SYSTEMS DEPARTMENT 23 

FRENCH LANGUAGE SERVICES 23 

YEAR END STATISTICAL SUMMARY 24 

Introduction 24 

Overview 24 

Incoming Cases and Cases Closed 24 

1 990 Production Measures 28 

Representation at Hearings 31 

Cases in Inventory 32 

FINANCIAL MATTERS 33 

APPENDIX A 

VICE-CHAIRS AND MEMBERS ACTIVE IN 1 990 37 

VICE-CHAIRS AND MEMBERS 

— RE-APPOINTMENTS 39 

VICE-CHAIRS AND MEMBERS 

— EXPIRED APPOINTMENTS AND RESIGNATIONS 40 

NEW APPOINTMENTS DURING 1 990 40 

SENIOR STAFF 42 

MEDICAL COUNSELLORS 42 

APPENDIX B, C, D — Audit Reports 

Appendix B 43 

Appendix C 47 

Appendix D 51 



Page iv 



Annual Report 1990 



INTRODUCTION 



The Workers' Compensation Appeals Tribunal is a tripartite tribunal established 
in 1985 to hear appeals from the decisions of the Ontario Workers' Compen- 
sation Board. It is a separate and self-contained adjudicative institution, 
independent of the Board. 

This report is the Tribunal Chair's and the Tribunal's annual report to the Minister 
of Labour and to the Tribunal's various constituencies. It describes the Tribu- 
nal's operational experience during the reporting period and covers particular 
matters which seem likely to be of special interest or concern to the Minister 
or to one or more of the Tribunal's constituencies. The reporting period for 
this report is the 1 990 calendar year. 

This is the second annual report to be titled "Annual Report" and to cover a cal- 
endar year. The first three annual reports, distinctively tided because of their 
special role in recording the Tribunal's formative years, were the "First Report", 
the "Second Report" and the "Third Report". They cover respectively the pe- 
riods of October 1, 1985, to September 30, 1986; October 1, 1986, to 
September 30, 1987; and the fifteen-month period from October 1, 1987, to 
December 31, 1988. 

This Annual Report comprises, in effect, two reports: The Report of the Tribunal 
Chair and The Tribunal Report. The Report of the Tribunal Chair reflects the 
personal observations, views and opinions of the Chair. The Tribunal Report 
covers the Tribunal's activities and financial affairs, and developments in its ad- 
ministrative policy and process. 



Page v 



Annual Report 1990 



REPORT OF THE 
TRIBUNAL CHAIR 



THE TRIBUNAL'S PERFORMANCE: 
CHAIR'S ASSESSMENT 

In 1990, theTribunal continued to meet its responsibilities in hearing and de- 
ciding appeals from WCB decisions. It dealt with both worker and employer 
interests fairly and objectively in accordance with the rule of law, and its carefully 
reasoned decisions once more played a constructive role in the compensation 
system's policy development process. Progress in the improvement of the Tri- 
bunal's efficiency continued to be made, although not at the pace evidenced 
in 1989. 

The goal of an average four-month turnaround time remained elusive. The av- 
erage time for a typical case to make its way through the Tribunal's process from 
start to finish in 1990 was just under eight months. 

But the Tribunal Counsel Office (TCO) staff reorganization and restructuring 
referred to in the 1989 report was not fully resolved until well into 1990 (our 
new General Counsel took office only in December 1989), and the 1990 av- 
erage figures include continuing TCO operational backlogs during that period. 
By the middle of the year, the TCO was back in shape and by the end of the 
year the processing times in TCO were substantially reduced. 

An indication of the latter improvement may be seen in the fact that of the 1 ,069 
cases received by the Tribunal in the first eight months of 1990, 50 per cent 
(532 cases) were closed before the year was out with an average turnaround 
time of four months and five days. These included 156 entidement cases which 
were closed with an average turnaround time of six months. 

By the end of the year, workers or employers who came to the Tribunal with an 
uncomplicated entitlement case that was ready for a hearing, could reasonably 
expect to have that case heard and a decision issued within four to five months 
from the time the Tribunal received the file from the WCB. (In this context, 
a case is "uncomplicated" if it does not require any further medical investigation, 
presents no novel legal issues and, by reason of the worker's consent, needs no 
preliminary adjudication of the employer's right of access to the Board file.) 

The Tribunal has a small but persistent number of backlogged cases at the deci- 
sion-writing stage of the process. About 9. 1 per cent of the cases at the 
ready-to-write stage had been ready-to-write for more than 12 months. We 
expect to substantially reduce that backlog over the next several months, but 
the Tribunal's experience over five years suggests that it is very difficult to avoid 
having a small percentage of decisions subject to lengthy delays. The problem 
has become increasingly difficult to control as the proportion of complex to 
simple cases continues to grow. 



Pagel 



Annual Report 1 990 



Statistically, this batch of ageing cases is of limited significance, but it represents 
hardship to the parties involved in those cases and is demoralizing to Tribunal 
adjudicators and staff and very tough on the Tribunal's reputation. The stub- 
born persistence of this problem in one form or another evidences, I have come 
to believe, insufficient adjudicative resources. We have, I think, been asking 
more of our full-time Vice-Chairs than is reasonable. This conclusion has led 
me to recommend two new full-time Vice-Chair positions in the 1 99 1 budget 
submission. 

The Tribunal's Vice-Chairs have, in my view, continued to perform in outstanding 
fashion. This is not to say that their colleagues, the worker and employer Mem- 
bers, or the Tribunal staff who make the work of the adjudicators possible, are 
not also performing exceptionally well. However, the Vice-Chairs have carried 
a special burden in the writing and analysis demands. 

The Vice-Chairs are responsible for the decision-writing and for 1 990 it was 
agreed, as it had been for 1989, that for full-time Vice-Chairs a target of 100 
scheduled hearings a year was a reasonable planning assumption. Given the 
Tribunal's low adjournment experience, if the scheduling target is met, a full- 
time Vice-Chair may expect to have about 90 decisions to write each year. With 
the exception of the small ageing backlog to which I have already referred, these 
decisions continue to be accomplished in a timely fashion, under very consid- 
erable pressure. 

The average writing time for the 1,081 decisions released in 1990 was 14.2 weeks. 
But if one removes from that calculation the 57 decisions which were released 
more than a year after the last hearing date, the average writing time for the 
remaining 1,024 cases then gives a better picture of the writing time required 
in the more typical cases. The average writing time with respect to the latter 
cases in 1990 was 10.3 weeks. 

These are, in my view, acceptable release times. They are comparable to the 1 988 
figures but represent a increase over 1989. The 1989 average writing time for 
all decisions was 7.5 weeks. The increase relative to the 1989 figure suggests 
that the 1989 figure may have been statistically anomalous. My colleagues and 
I share a strong impression that, generally speaking, the pace of decision-writing 
in 1990 was good given the increasing levels of complexity of appeals. 

In 1990, the Tribunal once more closed more cases than it received, reducing the 
inventory of cases at the Tribunal from 1,571 at the end of 1989, to 1,502 ax. 
the end of 1 990. The inventory and its distribution as of December 31,1 990, 
as compared to 1989, may be seen in the accompanying chart. (See Figure 1) 
The net inventory reduction of 69 cases compares, however, unfavourably with 
the net reduction in 1989 of 400 cases. And, in fact, in 1990 the net reduction 
in the inventory was achieved at all only because the number of cases received 
in 1990 was about 100 cases lower than the corresponding figure in 1989. 

Indeed, as the chart (Figure 2) on page 25 indicates on its face a down-turn in 
total cases closed by the Tribunal of about 28 per cent, as compared to 1989 
— an apparent loss of production of about 440 cases. 

However, these figures are significandy misleading as to the Tribunal's substantive 
performance in 1 990 and it is important for the reader to understand the true 
picture. 



Page 2 



Annual Report 1990 



FIGURE 1 



COMPARATIVE CASELOAD STATISTICS 



As at As at 
December 31 , 1 989 December 31 , 1 990 

Cases at pre-hearing stage* 1,134 1,082 

Post-hearing cases 

- Recessed 65 68 

- Complete but on hold 138 135 

- Ready to write decision 234 217 
Total cases at post-hearing stage 437 420 

TOTAL CASELOAD" 1,571 1,502 



* This figure includes pension-chronic pain cases which were on hold (180 cases as at 
December 31, 1990) and post-decision cases (156 as at December 31, 1990). 

" TOTAL CASELOAD excludes preliminary cases for which the appeal type was as yet 
undefined (12 cases as at December 31, 1990) and cases which were completed awaiting 
only their formal file closing (33 cases as at December 31, 1990). 



In the first place, approximately 215 of the 440 lost cases are paradoxically ac- 
counted for by an improvement in the Tribunal's efficiency at the Intake stage 
of its operations. 

The Tribunal always has a significant number of cases in its incoming caseload 
which eventually turn out not to be within its jurisdiction. Typically, the prob- 
lem is that some aspect of the case has not yet been finally dealt with at the 
WCB. These cases are ultimately withdrawn at the point where the Tribunal 
identifies the jurisdiction problem, and at that point they are categorized as 
cases closed without a hearing. Cases of this kind enter the Tribunals incoming 
caseload statistics and, since they are usually dealt with relatively quickly and 
without a hearing, most of them are also reflected in the same year's statistics 
for cases closed without a hearing. 

In 1 990, we were able to improve our rate of identification of this type of problem 
at the intake stage and, through improved communications between our Intake 
staff and the "premature" appellants, to have a much larger proportion of this 
type of case withdrawn at the outset. Cases withdrawn at that point minimize 
the delay to the appellants, do not engage the Tribunal's adjudicative resources, 
do not enter its incoming caseload statistics and, of course, do not then appear 
in the statistics for cases closed. The reduction as between 1989 and 1990 in 
the number of cases in the category of cases closed without a hearing — a re- 
duction of about 215 cases — reflects these new more efficient procedures and 
not any loss in actual production. 



Page 3 



Annual Report 1990 



When the reduction in the total number of cases closed as between 1 989 and 1 990 
is adjusted for this anomalous result of the improved efficiencies in the Intake 
Department, we are left with a substantive reduction of about 225 cases, or 
about 12 per cent, instead of 28 per cent, below the 1989 production figures. 
But this number is also misleading as to the Tribunal's actual level of perform- 
ance because another 75 of the lost cases were lost to the upward trend in the 
average complexity of cases coming to the Tribunal. 

Prior to 1990, the relationship between the number of decisions released and the 
number of cases closed by decision remained relatively constant: to close one 
case by decision the Tribunal was required to release 1. 02 decisions. The rela- 
tionship is not one-to-one because not all cases can be disposed of with one 
decision. Complex cases will often require one or more interim decisions. 

In 1990, this proportion, of decisions released to cases closed by decision, jumped 
to 1. 10. This change is reflective of the trend to more complex cases that is 
being evidenced in various areas of the Tribunal's activities. Had that proportion 
remained at the 1989 figure of 1.02, the Tribunal's decision-making efforts 
would have closed about 75 more cases than are shown in the chart. 

In effect, the drop in the number of closed cases which, in fact, reflects a reduced 
level of Tribunal production in 1990, as compared to 1989, is 140 cases — a 
7 per cent reduction. 

The nature of the reduction in the Tribunal's level of performance may also be 
assessed by comparing the number of decisions released. In 1 990, the Tribunal 
released 1,081 decisions, which compares with 1,181 decisions in 1989 — a 
drop of 100 decisions, or about 9 per cent. 

A third development which conspired to lower the number of cases closed in 1 990 
was the increase in the number of hearings it took to produce a decision. In 
1989, each decision required on average 1.05 hearings. In 1990, the corre- 
sponding figure was 1.08. (Additional hearings are required in a case when 
the case proves to be too complex to complete in the time scheduled for the 
original hearing.) Accordingly, a more accurate measure of the Tribunal's per- 
formance may be the number of hearings held. In 1 990, the Tribunal held 
1,163 hearings — 7 per cent below the 1989 number of hearings. 

Whether the true measure of the production loss in 1990 is 7 per cent or 9 per 
cent, it is approximately equivalent to one full-time panel's annual production, 
and the cause is not hard to find. Through a combination of anomalous cir- 
cumstances, the Tribunal experienced in 1990 a series of prolonged vacancies 
in its full- and part-time adjudicator positions that was, in total, the equivalent 
of being without approximately two full-time panels for the whole year. Re- 
tirements and maternity leaves produced an unusual number of vacancies and 
the filling of these was then complicated and delayed by the provincial election 
and the change in government and of the transition to a new appointments 
procedure. In my view, it is a tribute to the dedication of the staff and adjudi- 
cators that the shortfall in production was not higher. 



Page 4 



Annual Report 1990 



THE COOPERS & LYBRAND REVIEW 

In 1989, as part of his Green Paper study of various aspects of the workers' com- 
pensation system, the then Minister of Labour commissioned a review of the 
system's appeal processes, including the appeal process at the Appeals Tribunal. 
Coopers & Lybrand were awarded the Appeals Tribunal assignment and their 
study of the Tribunal was carried on during the summer and fall of 1 989. They 
reported to the Minister of Labour and the Tribunal Chair in May 1990. 

The review relied extensively on interviews of individuals who had varying degrees 
of experience with the Tribunal's processes and performance, both externally 
and inside the Tribunal. 

As of the end of 1 990, the Tribunal was still in the process of evaluating the Report's 
recommendations. In general, the Report confirmed that the Tribunal had in- 
terpreted its mandate appropriately and met that mandate successfully. The 
Report acknowledged a high degree of operational efficiency and effectiveness 
and reported general respect within both the employer and worker communi- 
ties, and at the WCB, for the quality, fairness and usefulness of the Tribunal's 
decisions. 

Notwithstanding its highly positive conclusions concerning the Tribunal's overall 
success in meeting its mandate, the Report went on to make numerous rec- 
ommendations for changes in the Tribunal's processes and structure — often 
changes in the very processes and structures which, in my opinion, accounted 
in the first place for the success the Report acknowledged. These recommen- 
dations were not, in my respectful view, always accompanied by reasons of the 
quality one might have expected in such circumstances. 

My immediate reaction and that of my colleagues to the Report's recommenda- 
tions may be seen from the following extract from my letter to the Minister 
of Labour acknowledging receipt of the report in May 1990: 

A number of the changes which the Report proposes we are already in the midst of 
accomplishing; there are other recommendations that we will have no difficulty in ac- 
cepting, and some that are clearly worthy of serious consideration. I do have a concern 
about the currency of some of the findings and about the suggestions relating to structural 
changes in the Tribunal s organizational and process arrangements, and I will address those 
in due course. 

The reference to a question concerning the "currency" of some of the findings, 
reflected the Tribunal's particular surprise at some of the Report's criticisms of 
the Tribunal's adjudicative process. These seemed to run contrary to the gen- 
erally positive feedback on the Tribunals adjudicative processes that by 1989 
my colleagues and I were commonly getting from our usual contacts within 
the employer and worker communities. The Report left the Tribunal wonder- 
ing if the study might not be reflective of views grounded in old perceptions 
of the Tribunal's processes. 

Because of the foregoing concerns, it was felt that, before deciding on the Report's 
recommendations, the Tribunal ought to consult widely within the worker and 
employer constituencies as to current views on the issues raised by the Report. 
As of theend of 1990, the Tribunal Chair and Alternate Chairwere just finishing 
a series of numerous meetings with all the major players in both the worker 
and employer communities throughout the province. 

A comprehensive response to the Report will be filed with the Minister in 1991. 



Page 5 



Annual Report 1990 



THE TRIBUNAL'S REVISED SENIOR 
MANAGEMENT STRUCTURE 

During 1 989 and into 1 990, the Tribunal was experimenting with a restructuring 
of its senior management, and this experiment was concluded and permanent 
changes introduced in the latter half of the year. 

The level of management represented by the position of General Manager has 
been eliminated and the General Manager's responsibilities distributed 
amongst the following three new positions: 

Chief Information Officer (CIO) 
Chief Administration Officer (CAO) 
Manager, Financial Administration (MFA) 

The CIO position combines responsibility for the Tribunal's publications and li- 
brary operations with responsibility for the strategic planning, design, mai n tenance 
and operation of the Tribunal's computer systems. The position reports to the 
Chairs Office. 

The CAO position is responsible for planning and maintenance of the Tribunal's 
premises; for the procurement and administration of it supplies and equipment; 
for management and administration of its internal administrative support serv- 
ices, including the purchasing function; and for strategic planning implementation 
and administration of the Tribunal's Human Resources policies. The position 
is also responsible for ensuring generally that none of the Tribunal's adminis- 
trative needs are being overlooked by reason of their slipping through the seams 
in the management structure created by the absence of the overarching General 
Manager position. The position reports to the Chair's Office. 

The MFA is responsible for the management and administration of all of the Tri- 
bunal's financial activities. This position also reports to the Chair's Office. 

The senior management structure is now comprised of these three new positions, 
plus the previously existing positions of General Counsel and Counsel to the 
Chair. 

In addition to discharging the usual legal responsibilities of a General Counsel 
position, the Tribunal's General Counsel, who reports generally to the Chair, 
manages and supervises the Tribunal Counsel Office and the pre-hearing in- 
vestigation and preparation work done by that office. The position is also 
responsible for supervising and administering the Tribunal's operational rela- 
tionship with the WCB. 

The Counsel to the Chair is responsible to the Chair for the maintenance of the 
general quality and consistency of the Tribunal's decisions and for the continued 
coherence and usefulness of the Tribunal's developing jurisprudence. She ac- 
complishes this through the supervision and administration of the Tribunal's 
draft-decision review process. This position is also responsible for advising the 
Chair's Office concerning matters of administrative law as they affect the Tri- 
bunal's adjudicative activities, for supervising and administering the procedures 
connected to the exercise of the Tribunal's powers of reconsideration; and for 
advising the Chair in respect of his responsibilities under the Freedom of Infor- 
mation and Protection of Privacy Act. 



Page 6 



Annual Report 1990 



Two other positions with senior responsibilities which report to the Chairs Office 
are: the Appeals Administrator and the Manager of Statistical Research and 

Analysis (MSRA). 

The Appeals Administrator is the Tribunal's Registrar and is responsible to the 
Chairs Office for the scheduling, organization and administration of hearings, 
including travel and premises arrangements. This position also works closely 
with the Chairs Office in the assignment of panels. The MSRA is responsible 
for keeping track of the Tribunal's production performance, for keeping the 
Chair's Office and senior management advised regularly of that performance 
in all its aspects, and for the timely identification of emerging problems and 
new trends. 

The Chair's Office as referred to above comprises the Tribunal Chair and Alternate 
Chair and their support staff. The Chair's Office looks after the Chief Executive 
Officer responsibilities of the Chair. These responsibilities are currendy shared 
between the Chair andtheAternateChairinthefollowingmanner: TheChair 
works with the Counsel to the Chair, the CIO, the MFA and the General Coun- 
sel and, in conjunction with his Executive Assistant, looks after the 
appointments process. The Alternate Chair works with the CAO, the Appeals 
Administrator and the MSRA. She also deals with the General Counsel in re- 
spect of TCO matters affecting production rates. The Alternate Chair has also 
accepted the responsibility forexpediting the adjudicative work of the Tribunal's 
Vice-Chairs and Members. 

In respect of policy or administrative matters of strategic significance, senior man- 
agement continues to work with the Tribunal's tripartite committee structure 
and with the Tribunal's Executive Committee and the Tribunal Assembly. The 
committee structure is currently under review as a result of recommendations 
in the Coopers & Lybrand Report. 



INFORMATION TECHNOLOGY 

Following the appointment of the new CIO, the Tribunal's information manage- 
ment strategy has been reviewed and at the end of 1990, the Tribunal was 
putting the finishing touches on a new technology plan which includes the com- 
pletion in 1991 of a major upgrade of the Tribunal's central computer system 
and the implementation of an operational case tracking system. 



CHANGES IN THE DRAFT-DECISION 
REVIEW PROCESS 

The substance of the draft review process conducted by the Office of Counsel to 
the Chair continued unchanged during this reporting period. As discussed in 
previous annual reports, the aim of the review is to ensure that Tribunal decisions 
are not rendered in isolation, that they meet Tribunal- wide standards of quality, 
and that the Tribunal's case law develops as much as possible as a coherent body 
of decisions. The review is performed in most cases by Counsel, with occasional 
input from the Chair. 



Page 7 



Annual Report 1 990 



Counsel and panel members are careful to ensure that the administrative law re- 
quirements outlined in Consolidated-Bathurst Packaging Ltd. v. International 
Woodworkers of America, Local 2-69(1990), 68 D.L.R. (4th) 524 (S.C.C.) are 
met: the hearing panel's factual findings are accepted; the parties are provided 
with an opportunity to make submissions on any new matter of significance 
identified in the draft review process which the parties have not had opportunity 
to address in the hearing process; and the ultimate decision is left: to the panel 
members. 

During this reporting period the procedure of reviewing all drafts prepared by 
part-time Vice-Chairs was discontinued. Many of the Tribunal's part-time 
Vice-Chairs now have significant experience in adjudicating workers' compen- 
sation matters and no longer require assistance on a regular basis. It was felt 
to be more sensible to implement a review system that reflected the Panel Chair's 
experience in workers' compensation and decision-writing. 

A new Vice-Chair, whether full- or part-time, with significant prior experience 
in workers' compensation, is now asked to submit for review his or her first 10 
drafts dealing with entitlement appeals and first five drafts in special section 
cases. A new Vice-Chair without significant workers' compensation back- 
ground is asked to submit his or her first 25 entitlement drafts and first 10 
special section drafts for review. 

After this initial phase is completed, neither full- nor part-time Vice-Chairs are 
asked to submit drafts to the review process except when they identify issues 
of general Tribunal interest or significance. 



MEDICAL MATTERS 

The Tribunal continued in 1 990 to attract leading specialists to its roster of section 
86h medical assessors and to receive from that roster, medical evidence of very 
high quality. 

It also continued to receive invaluable advice and assistance from its group of senior 
Medical Counsellors. 

The internal, post-decision, Medical Counsellor audit of the Tribunal's general 
handling of medical issues and treatment of medical evidence continues to af- 
firm that the Tribunal's performance in respect of these matters remains, from 
an overall perspective, competent and appropriate. 

The Tribunal's relationship with the medical community generally is a matter 
which I have always regarded as a particularly high Tribunal priority. Ultimately, 
the quality of the Tribunal's decisions on medical issues is dependent on that 
relationship. I am pleased to report that, as evidenced by the Tribunal's con- 
tinuing ability to readily enlist leading members of the profession to its service, 
that relationship remains a positive one. 



Page 8 



Annual Report 1 990 



BILL 162 AMENDMENTS: UPDATE ON 
TRIBUNAL INVOLVEMENT 

The Tribunal continued to be surprised by the slow development of any incoming 
caseload stemming from the Bill 162 amendments to the Act. As of the end 
of the reporting period, apart from some transitional questions affecting cases 
already before the Tribunal, the Tribunal had received only one Bill 162 case 
— a re-employment case. 



SECTION 86n AND 

THE FINAL SAY ISSUE: UPDATE 

In 1990, the WCB Board of Directors released its decision in the second of the 
two 86n reviews that it has undertaken. This one reviewed the Tribunal's De- 
cision Nos. 915(1987), 7 W.CA.T.R. 1 , and 915A (1988), 7 W.C.A.T.R. 269, 
and a number of associated decisions on the issue of the retroactive application 
of the new policy for compensating chronic pain conditions. I refer here to 
the Board's decision as Review Decision 915 and915A. 

Decision No. 915 found that disabling chronic pain was compensable and over- 
ruled the Board's previous approach to chronic pain. Decision No. 915A 
concluded that the appropriate commencement date for chronic pain benefits 
awarded in accordance with this overruling was March 27, 1986 — the date 
on which the Tribunal's review of the chronic pain policy had commenced. 

Review Decision 915 and915A ( 1 990), 1 5 W.C.A.TR. 245, concluded that there 
was no reason in the ci rcumstances of the introduction of the chronic pain policy 
not to accept the Tribunals commencement date for the new policy. There 
was thus no need to refer either Decision No. 915 or 91 5A back to the Appeals 
Tribunal for reconsideration. 

With respect to the cases in which the Appeals Tribunal had awarded temporary 
benefits for chronic-pain conditions for periods prior to March 27, 1 986 (which 
cases were a part of the same review process), the Board of Directors determined 
that in logic the same retroactive date should apply. The Board invited the par- 
ties to those cases to make submissions on the issue of whether the Board of 
Directors should now proceed to exercise its right under section 86n to direct 
the Tribunal to reconsider those decisions in light of that determination. 

As of the end of the reporting period, decisions on the latter cases were still pending. 
Accordingly, as of the end of 1990, the Board of Directors had yet to issue a 
section 86n directive to the Tribunal. It may be noted that in Review Decision 
915 and915A the Board of Directors agreed with the interpretation in Deci- 
sion No. 42/89(1989), 12 W.CA.T.R. 85, as to the obligations of the Tribunal 
in the face of a section 86n direction (see the 1989 Annual Report). 

Additional details on the Board's review decision appear in the chronic pain section 
of the highlights of case issues below. 



Page 9 



Annual Report 1 990 



HIGHLIGHTS OF THE 1990 CASE ISSUES 

The 1989 Annual Report and Third Report provided examples of some of the 
legal, factual and medical issues addressed by the Tribunal during the reporting 
period. This section continues that tradition, by updating some of the issues 
previously canvassed and noting new ones. Unfortunately, it is impossible to 
do more than highlight a few areas that seem to be of particular interest. The 
issues are presented in no particular order of importance. The section includes 
a number of issues of particular interest to employers. 

The Compensable, Work-injury Relationship 

The 1989 Report noted that the concept of an injury by accident "arising out of 
and in the course of employment" — which is fundamental to the workers' 
compensation system — continued to be explored and developed in the context 
of difficult fact situations, such as fights, heart attacks, unexplained falls, drug 
abuse and the like. 

This trend continued in 1990, along with a renewed interest in the role of the 
presumption clause. See Decision No. 24F(\990), 13 W.C.A.T.R. 1, Decision 
No. 405/90 (1990), 16 W.C.A.TR 244, Decision No. 351/90 (1990), 17 
WCAT.R. 143, and Decision No. 224/90(1990), 14 W.CAT.R 310. 

Occupational Disease 

Occupational disease cases, involving disabilities caused by exposure to harmful 
substances or processes at work, continued to pose some of the most challenging 
issues for the Tribunal. The general approach to these cases remains the same: 
disabilities are compensable if they fall within the statutory definition of "in- 
dustrial disease" and related provisions, or within the "disablement" branch of 
the definition of "accident". 

The Board has frequently developed policies to assist in adjudicating claims for 
particular industrial diseases where epidemiological evidence exists. Decision 
No. 257/89(1990), 14 W.CAT.R. 87, provides an interesting illustration of 
the Tribunal's role in reviewing such policies. It involved the policy adopted 
for compensating gold miners who develop lung cancer. The Panel reviewed 
the policy in detail and the epidemiological evidence on which it was based. 
The Panel found that even though the worker did not fit precisely within the 
policy, the evidence of his actual dust exposure was comparable to the levels 
for which compensation was granted under the policy, and he was entitled to 
benefits. The Board's policy could not fetter the Tribunal's discretion to con- 
sider individual cases on their merits. 

The Tribunal may also be called on to adjudicate occupational disease claims where 
there is little or no epidemiological evidence. See, for example, Decision No. 
1268/87(1990), 1 6 W.CAT.R 14, which considered the relationship between 
exposure to beta-naphthylamine and bladder cancer and Decision No. 859/89 
(1990), 16 W.CA.TR 1 59, which considered dust exposure and chronic ob- 
structive lung disease (COLD). Decision No. 859/89 contains an interesting 
discussion of the problems associated with epidemiological evidence, given the 
amount of time and money needed to produce reliable studies. 



Page 10 



Annual Report 1990 



For a general discussion of the Tribunal's obligation to adjudicate claims under 
the Workers' Compensation Act even though the scientific community has not 
reached a unanimous opinion on causation, see Decision Nos. 1170/87(Msy 
2, 1990), 303/88(1990), 13 W.CAT.R 44, and 681/89 (March 13, 1990). 

Occupational Stress 

Occupational stress is an issue which has been discussed in prior annual reports 
and has also received some media attention during this reporting period. The 
Board is in the process of developing a policy on chronic occupational stress. 
Meanwhile, the Tribunal is called on to adjudicate stress claims as they arise. 

Because of the evidentiary problems connected with deciding stress claims, a few 
early Tribunal decisions suggested that a special two-step inquiry was appro- 
priate. Questions were subsequently raised as to whether this special inquiry 
changed the statutory burden of proof. The trend in more current Tribunal 
cases is to affirm that the usual standard of proof applies. These cases ask 
whether the evidence establishes on a balance of probabilities that the workplace 
was a significant contributing factor to the disability. See Decision Nos. 145/89 
(1990), 14 W.CAT.R. 74, 980/89(1990), 13 W.CAT.R. 304, and 684/89 
(1990), 16 W.CAT.R. 132, which left the standard of proof question open. 

Decision No. 980/89 also outlined a three-part test for determining causation in 
stress cases. The Panel stated that it is necessary to establish: 

1 ) that a psychological disability exists and disables the worker from performing 
the functions of the job; 

2) that the disability is work- related — this requires evaluation of the various 
workplace stressors, including whether they are usual or not and whether 
other workers were affected; 

3) if there is a disability and the workplace made a contribution, whether the 
workplace contributed significantly to the development of the disability — 
this requires a comparison of the worker's personal and work situations. 

This approach was applied in Decision No. 145/89 which was the first Tribunal 
decision to grant entitlement for a chronic stress claim. The case involved a 
long-distance trucker who had no pre-existing personality traits which predis- 
posed him to developing this type of disability. He also was not subject to any 
significant personal stressors. The evidence established a number of work-re- 
lated stressors: the worker was forced to perform long-haul driving with 
inexperienced co-drivers and was exposed to several motor vehicle accidents, 
one of which was particularly troubling to him. There was evidence that other 
long-haul truckers employed by this employer suffered burn-out to the point 
where the employer closed his business due to a lack of dependable drivers. The 
worker's symptoms cleared when he was removed from long-haul trucking. 
There were also medical opinions which supported the workplaces contribu- 
tion to the disability. 



Page 1 1 



Annual Report 1 990 



Decision No. 684/89 is another instance of a chronic stress claim being allowed. 
The worker had been employed in a secure facility in a job involving the care, 
control and supervision of young offenders. Her work situation changed fol- 
lowing legislative amendments which introduced older, more criminalized and 
more aggressive residents to the facility. There was also increased hostility and 
turbulence during the transitional period. The Panel concluded that the work- 
place stressors were predominant in contributing to the disability. The Panel 
also noted that review of the worker's private life for non-work stressors did 
not constitute an unjustified invasion of the worker's privacy. 

A claim for a stress-related disability also came before the Panel in Decision No. 
322/891 (November 19, 1990). The case involved a firefighter who claimed 
to suffer burn-out after 20 years of work in an understaffed department as well 
as stress from being demoted when his department was amalgamated with a 
larger one. The Panel requested further submissions on whether personnel ac- 
tions could be considered compensable accidents and when mental injuries 
should be considered disabling. 

Chronic Pain and Fibromyalgia 

Appendix C to the Third Report reviewed the development of the Tribunal's and 
Board's treatment of chronic pain and fibromyalgia cases in some detail. On 
June 1, 1990, the WCB Board of Directors issued its section 86n review of 
Decision Nos. 915, 915A, etc. The following summary of the Board's Review 
Decision 915 and915A is intended to provide a context for understanding the 
Tribunal's chronic pain and fibromyalgia cases. For a better knowledge of the 
Board's Review Decision, the full text should be read. It is reproduced as an Ap- 
pendix to 1 5 WC AT.R. at p. 247. 

The Review Decision indicates the Board of Directors' view that the Board and 
Tribunal are in substantial agreement as to the way in which chronic pain and 
fibromyalgia cases should be adjudicated. The only significant point of differ- 
ence identified in the Review Decision is the start date which should be chosen 
for retroactive payment of benefits. 

The Board's Chronic Pain Disorder Policy originally adopted a start date of July 
3, 1987. Decision No. 915A (1988), 7 W.C.A.TR. 269, held that principles 
of good public administration required that March 27, 1986 (the date on which 
the overruling process began at the Tribunal), should be the effective date for 
payment of benefits for chronic pain. While the Review Decision indicates that 
a number of different start dates might well accord with the objectives of the 
Workers' Compensation Act, the Board of Directors felt that there was no fun- 
damental dispute between the Board of Directors and the Tribunal. Without 
foreclosing its right to develop criteria which might lead to a different deter- 
mination with respect to retroactivity on other policy matters, the Board of 
Directors decided to accept the Tribunal's start date. The Board of Directors 
indicated that it was influenced by the length of time the entire process had 
taken and the relatively small difference between the two dates. Accordingly, 
the Review Decision concluded that there was no need to instruct the Tribunal 
to reconsider Decision Nos. 915 or 915A. 



Page 12 



Annual Report 1 990 



Only one issue that arose in the review process leading up to the Review Decision 
remained outstanding at the end of the reporting period. A number of Tribunal 
decisions included in the review had awarded temporary benefits for chronic 
pain prior to March 27, 1 986. Counsel to the Board of Directors had previously 
indicated to the parties involved in those cases that they would have an oppor- 
tunity to make submissions in each of those cases on how the Board should 
exercise its section 86n discretion to direct the Tribunal to reconsider. Submis- 
sions were obtained and the Board of Directors' determination on that issue 
in these cases was still pending at the close of the reporting period. 

The Board of Directors' Review Decision also directed Board staff to review the 
appropriateness of the Board's clinical rating schedule for chronic pain disorder, 
as well as the schedules for post-traumatic psychiatric disorders and fibromy- 
algia. A staff review was also directed on the length of time temporary benefits 
should be payable for chronic pain in light of the threshold test of "six months 
past normal healing time" in the chronic pain disorder policy. 

On October 5, 1990, the Board of Directors abolished the rating schedule for 
chronic pain and made the psychotraumatic disability rating schedule appli- 
cable to chronic pain and fibromyalgia as well as psychotraumatic disabilities. 
The schedule was renamed the "Psychotraumatic and Behavioural Disorders 
Rating Schedule". At the same time, the Board of Directors reaffirmed that 
"six months beyond the usual healing time" should be viewed as the usual time 
for rating workers with chronic pain and fibromyalgia, but that decision-makers 
must look to general principles for determining maximum medical rehabilita- 
tion to ensure that individual differences are considered. 

Turning to the Tribunal's treatment of chronic pain, a number of panels assessed 
pensions in chronic pain and fibromyalgia cases. As noted in Decision No. 
106/89(1990), 16 W.CAT.R. 59, panels still face the difficult task of distin- 
guishing between psychogenic pain (chronic pain and mixed pain), and 
psychotraumatic pain in cases where benefits are claimed before March 1986. 
However, over time, there should be less need to make these difficult distinc- 
tions. 

The adoption of a chronic-pain policy by the Board does not mean that all workers 
receiving pensions, and suffering from chronic pain, will necessarily receive in- 
creased benefits. Some older Board decisions may already have compensated 
chronic pain to some extent, given the difficulty in distinguishing organic and 
non-organic pain. Thus, where a panel was satisfied that the existing pension 
award in fact adequately compensated for the organic ^«^non-organic disabil- 
ity, no further pension for chronic pain was awarded. See Decision No. 519/89 
(1990), 13 W.CAT.R. 208. However, where a panel determined that the 
worker's condition, while predominantly organic, was not adequately compen- 
sated by an organic pension, it directed the Board to re-assess the worker to 
compensate for the chronic pain and related drug dependency. See Decision 
No. 671/901(1990), 16 W.CAT.R. 284. 



Page 13 



Annual Report 1 990 



The Tribunal has also addressed some complexities which have arisen from the 
evolution of the systems understanding of chronic pain and fibromyalgia. For 
example, the Board's decision to use the psychotraumaric rating schedule to 
assess benefits for fibromyalgia pre-July 3, 1 987, does not mean that there must 
be evidence of psychotraumatic disability, rather than fibromyalgia, for enti- 
tlement. See Decision No. 337/90 (August 9, 1 990). Some confusion has also 
arisen from the requirement of a "marked life disruption" in chronic pain cases. 
Pensions for chronic pain, like all other pensions granted under the pre- 1989 
Act, are intended to compensate for impairment of earning capacity. Marked 
life disruption in non-work areas must be considered as part of the evidence 
of impairment because of the difficulties in assessing such a subjective con- 
dition, but the pre- 1989 Act does not compensate marked life disruption as 
such. See Decision No. 865/89 '(May 11, 1990). 

Pension Assessments 

During this reporting period, the Tribunal continued to gain experience in as- 
sessing pensions, including experience in cases where no Board guidelines exist. 
In such cases, the Tribunal must determine what other material will be helpful 
in understanding and rating the condition. Decision No. 135/90 (1990), 14 
W.C.A.T.R. 266, looked at the American Medical Association (AMA) Guide- 
lines on vascular disease and the Board's guidelines on hand amputations in 
assessing a pension for a severe case of white finger disease. Similarly, in a case 
involving an extraordinarily severe tinnitus disability, the Panel determined that 
the rating schedule for tinnitus did not compensate for all aspects of the worker's 
disability and turned to the psychotraumatic rating schedule for assistance. See 
Decision No. 876/88(1990), 13 W.CAT.R. 89. And see Decision No. 807/88F 
(April 6, 1990), for a similar approach to eye injuries. 

The Tribunal has also considered whether particular rating schedules are consistent 
with the Act or with other rating schedules. Decision No. 453/89(1990), 15 
W.CAT.R. 81, upheld the Board's policy of compensating for eye injuries 
based on the level of vision after correction with glasses since there is typically 
no impairment of earning capacity in such cases. And see Decision No. 68/90 
(1990), 16 W.CAT.R. 21 1, which compared the Board's rating schedules for 
knees and backs. 

The Board's policy on enhancement factors, or multiple factors as they are some- 
times known, was also reviewed. Decision No. 831/88F( 1 990), 1 6 W.CAT.R. 
26, found that this policy applied when a disability existed bilaterally in limbs. 
The Panel felt that there was a direct functional relationship between the foot 
and knee, and applied a multiple factor to the entire limb. Decision No. 565/89 
(1990), 16 W.CAT.R 121, found that, given the availability of the whole- 
person approach in the assessment of pensions, it was not necessary to consider 
a specific enhancement factor. 



Page 1 4 



Annual Report 1990 



Worker versus Independent Operator 

An issue which has arisen frequently is whether a person is a "worker" under the 
Act or an independent operator. Tribunal decisions have looked to the common 
law in answering this question, and generally favoured the more recent "organ- 
izational test" over the older "control test". The "organizational test" was felt 
to be more likely to determine the substance of the work relationship. In this 
reporting period, several decisions have stressed that all the evidence must be 
assessed in determining the substance of the working relationship. See Decision 
No. 478/90 (August 17, 1990) which generally applied the organizational test 
while noting that all evidence must be reviewed. Decision No. 729/901 (No- 
vember 5, 1 990) adopted a hybrid test, incorporating elements of the "control" 
and "organizational test" with other considerations. Decision No. 729/90Ipro- 
posed that the real question was whether the person was a sufficiently 
independent business entity that he or she ought to bear the costs and risks of 
compensation. More recendy, Decision No. 921/89(1990), 14 W.C.A.T.R. 
207, commented on the evolution of the worker/independent operator test. 
It agreed that the entire work relationship should be examined and proposed 
a "business reality test" based on a list of 1 1 factors. 

Transfer of Costs Between Employers 

In cases involving negligence and more than one employer, the Act enables the 
Board to transfer all or part of the costs of an accident to a different class or 
group of employers where the Board is satisfied that the negligence of a Schedule 
1 employer other than the injured worker's employer has contributed to the 
injury. Early Tribunal decisions held that this section only applied where there 
was "clear evidence" of negligence. However, Decision Nos. 17/89(1990), 16 
W.C.A.TR. 46, and 688/89(1990), 14 W.C.A.TR. 156, held that the usual 
common law standard of negligence applies. A transfer of costs may be author- 
ized where negligence is proved on a balance of probabilities. Since a transfer 
of costs is discretionary, the Tribunal referred the amount of the transfer back 
to the Board for determination in light of the Tribunal's findings on negligence 
and other policy concerns the Board might have. 

Experience Rating 

This reporting period saw three challenges to the Board's CAD-7 experience rating 
plan which is used to calculate employer assessments in certain industries. 
While the CAD-7 plan was upheld as generally consistent with the Act, Decision 
No. 86/89(1990), 14 W.CAT.R. 63, held that the Tribunal had jurisdiction 
to hear all aspects of an assessment appeal, including the application of the 
CAD-7 formula to the facts of the case and whether the whole plan or details 
of it conform to the Act. The Board's decisions should be treated with deference 
since the Board is given a broad statutory discretion in developing assessment 
plans and has particular expertise in this complex area. The systemic perspective 
— to treat similarly situated employers similarly — is particularly important 
but does not prevent an individual employer from challenging aspects of the 
CAD-7 formula. 



Page 15 



Annual Report 1 990 



DecisionNo. 894/89(1990), 14W.C.AT.R. 194, and Decision No. 296/90 ( 1990), 
14 W.C.A.T.R 346, took the same general approach, but noted two qualifi- 
cations. Decision No. 894/89he\d that the Board is not entitled to completely 
fetter its discretion and apply the CAD-7 formula strictly, without regard to 
whether the formula produces an unfair or unreasonable result. Decision No. 
296/90 hdd that the Board's discretion cannot deprive the Tribunal of its ju- 
risdiction to look at the business reality of the situation, such as whether a 
successor company is, in essence, a new company or not. 

Penalty Assessments 

The Tribunal has also considered whether different factors should be considered 
in revoking a penalty assessment. For example, should a penalty be removed 
where the employer is a charitable organization? Is it relevant that the employers 
in a group are not homogeneous, and most members of the group benefit from 
a lower accident rate because one employer handles more dangerous work? See 
Decision Nos. 39/90(1990), 13 W.C.A.TR. 333, and 443190 (1990), 16 
W.C.A.TR. 253. 

Canadian Charter of Rights 

The Canadian Charter of Rights and Freedoms, is part of the Constitution of Canada 
and protects the civil liberties of Canadians. Section 24(1) of the Charter pro- 
vides that anyone whose rights or freedoms have been violated, may apply to 
a "court of competent jurisdiction" to obtain such remedy as the court considers 
just in the circumstances. Section 52(1) provides that the Constitution is the 
"supreme law" of Canada, and any law that is inconsistent with the Constitution 
is "to the extent of the inconsistency, of no force or effect". 

A number of courts and administrative tribunals have considered the legal question 
of whether an administrative tribunal has jurisdiction to decide Charter chal- 
lenges to its governing legislation. If an administrative tribunal does have such 
jurisdiction, does it have the power to grant remedies under section 24(1) of 
the Charter, or is it limited to holding under section 52(1) that a particular 
statutory provision is of no force or effect in the circumstances of the particular 
case? 

Charter challenges have been made in only a few Tribunal cases. The most com- 
prehensive decision to date, DecisionNo. 534/901(1990), 17 W.CATR.187, 
was issued in this reporting period. It had the benefit of considering a recent 
Ontario Court of Appeal decision, Cuddy Chicks Ltd. v. Ontario (Labour Re- 
lations Board) (1989), 62 D.L.R. (4th) 125 (now on appeal to the Supreme 
Court of Canada) . Decision No. 534/901 held that the Tribunal was not a "court 
of competent jurisdiction" and could not grant remedies under section 24 of 
the Charter. However, it also found that the Cuddy Chicksdcdsion was binding 
on the Tribunal and gave the Tribunal jurisdiction to deal with challenges under 
section 52(1) of the Constitution. The Panel noted that Cuddy Chicks did not 
consider whether the Tribunal is obligated to hear Charter challenges raised by 
parties or whether the Tribunal may determine that it is more appropriate 
for the parties to bring a court action. Decision No. 534/901 asked the parties 
for submissions on whether the Tribunal had a discretion to decline to hear a 
Charter challenge and, if so, what criteria it should apply in exercising such a 
discretion. No submissions were received by the end of the reporting period. 



Page 16 



Annual Report 1990 



Other 

Other interesting legal and medical issues which have come before the Tribunal 
include the retroactivity of benefits in industrial disease cases {Decision No. 
420/88(1990), 14 W.CAT.R 7), and the retroactivity of interest payments 
(Decision No. 467189 (1990), 14 W.CAT.R. 1 17); the question of who is a 
"dependant" of a deceased worker in cases involving separated spouses and other 
non-traditional family arrangements (Decision Nos. 560/90 (1990), 17 
W.CAT.R 236, and 632/90 (1990), 16 W.CAT.R 268), and the compen- 
sability of on-the-job heart attacks (Decision Nos. 240/89 (1990), 16 
W.CAT.R. 113, and 544/89 (September 4, 1990)). 

Another issue which has continued to receive attention is what types of payments 
should be treated as part of a workers earnings basis for the purpose of calcu- 
lating benefits. See DecisionNos. 362/90(1990), 15 W.CAT.R. 195, 75/90 
(May 14, 1990), 948/88 (1990), 16 W.CAT.R 32, and 797/89(1990), 14 
W.CAT.R 175. 



JUDICIAL REVIEW ACTIVITY 

In 1 990, three applications for judicial review were heard by the Divisional Court. 
The decisions subject to the applications were: 

1) Decision No. 462/88 dated November 23, 1988, heard February 7, 1990; 

2) DecisionNos. 695/88, 696/88(1989), 10 W.CAT.R. 308, and 697/88, all 
dated March 9, 1 989, Decision No. 850/87 datzd February 11,1988, Decision 
No. 981/87 dated June 3, 1988, Decision No. 850/87R (1990), 14 
W.CAT.R. 1, and Decision No. 981/87R dated March 23, 1990, all seven 
of which were heard together on November 29, 1990; 

3) Decision No. 258/90 dated April 23, 1990, heard December 7, 1990. 
All three applications were dismissed. 

At the end of 1990 there were five applications for judicial review outstanding. 
These are applications for review of: 

Decision No. 799/87 dated September 3, 1987; 
Decision No. 298/88(1988), 9 W.CAT.R. 281; 
Decision No. 656/88 dated December 9, 1988; 
Decision No. 91 7/88 dated August 11, 1989; and 
Decision No. 977/89(1990), 13 W.CAT.R. 298. 

A motion for leave to appeal has been filed with respect to the Divisional Court's 
dismissal of the application respecting the seven decisions heard on November 
29, 1990. 

There is also an earlier motion for leave to appeal from a decision of the Divisional 
Court which remains outstanding. This involves Decision No. 525 dated 
March 19, 1987. The application for judicial review was dismissed June 9, 
1988, and the motion for leave to appeal was filed June 30, 1988. No further 
action has been taken since that date. 



Page 1 7 



Annual Report 1990 



THE 

APPEAL 

PROCESS 



Receipt of Appeal and 
Intake Processing 




Records 


Intake 



1 



Pre-hearing Processing 



T 



Tribunal Counsel 

Pre-hearing Legal 

Workers 

Medical Liaison Officer 

Case Description Writers 



Scheduling Hearing 



I 



Scheduling 



Hearings 



Post-hearing Processing 



Panel 



Tribunal Counsel 

Pre-hearing Legal 

Workers 



Panel 



Post-hearing Coordinator 

Medical Liaison Officer 

Tribunal Counsel 

Office 









Panel 


Decision Writing 
Process 












Counsel to the 

Chairman's 

Office 




i 











Panel 


Decision Release 




Information Department 







Special and Administrative Services 



Systems Department 
Finance and Administration 
French Translation Services 
Information Department 
(Library and Publications) 
Human Resources 



Reproduction and Mail Room 
Secretarial Services 
Statistical Services 
(Data Processing and Reports) 
Word Processing Centre 



Annual Report 1 990 



THE TRIBUNAL REPORT 



THE APPEAL PROCESS 

The appeal process used by the Tribunal has been represented graphically as a flow 
chart on the facing page. 



VICE-CHAIRS, MEMBERS 
AND STAFF 

Lists of the Vice-Chairs and Members, senior staffand Medical Counsellors active dur- 
ing the reporting period, as well as a record of roster changes and resumes for newly 
appointed Vice-Chairs and Members can be found in Appendix A. 



TRIBUNAL COUNSEL OFFICE 

The Tribunal Counsel Office (TCO) consists of six groups, each reporting to the Gen- 
eral Counsel. 



Intake 

The Intake Department, in addition to handling all incoming appeal applications and 
the public's questions about appeals and about the appeal process, has been primarily 
responsible for all the Tribunal's "special section" cases. The special section cases 
include Section 77 access to information cases, Section 21 employer requests for 
medical examinations, and Section 1 5 cases on the right to maintain civil actions 
for damages. In 1990, the Tribunal also received its first appeal on the issue of Re- 
employment, under section 54b of the Act. 

The legal aspects of this work are carried out under the review of TCO lawyers. Special 
section cases constitute approximately 30 per cent of the Tribunal's incoming cases 
and often involve complex legal questions. 

The Intake Department is headed by the Intake Manager. 

Case Description Writers 

Case Description Writers are responsible for preparing all cases for hearing according 
to a standardised model and within certain time limits. 

In 1990, TCO commenced the use of specialised case description writers for Section 
77 appeals, to ensure that these appeals are handled as expeditiously as possible. 

The Case Description group works under the supervision of a senior TCO lawyer. 



Page 19 



Annual Report 1 990 



Pre-hearing Legal Workers 

When the Case Description is complete, the case is scheduled and transferred either 
to a legal worker or, for the most complex appeals, to a lawyer. Approximately 90 
per cent of cases are handled by legal workers. These legal workers deal with matters 
that arise pre-hearing and may provide assistance to parties if there are questions 
respecting the preparation of the cases 

In 1990, the pre-hearing legal worker group was expanded from the original group of 
four pre-hearing legal workers. It nqw includes a Manager of the pre-hearing group, 
three senior legal workers and three pre-hearing legal workers. 

Lawyers 

Lawyers handle a small number of complex cases involving novel legal issues or issues 
which have been identified as involving a significant Tribunal interest. TCO lawyers 
report directly to the General Counsel. 

Lawyers may, with the permission of the hearing panel, attend hearings to cross-ques- 
tion witnesses or may provide the panel with evidence, usually in the form of expert 
evidence from one of the Tribunal's medical assessors. The purpose of these func- 
tions is to ensure that there is an adequate record before the panel. Lawyers may 
also make submissions on matters of law either by way of written submissions or 
orally at the hearing, at the request of the hearing panel. However, TCO lawyers 
do not make submissions on issues of fact and all submissions are presented in as 
neutral a manner as possible. 

In 1990, the number of lawyers employed by TCO exclusive of General Counsel was 
reduced by three, from eight to five, in parallel with the increase in the number of 
legal workers in the pre-hearing group. This change reflects the fact that as the Tri- 
bunal matures there are fewer novel issues requiring input from the Tribunal's own 
lawyers. 

Medical Liaison Office 

The Medical Liaison Office reviews all completed case descriptions, identifies whether 
further medical investigation is required, and, if it is, whether it can be obtained 
from the treating physicians or from one of the Tribunal's section 86h assessors. 

The office is headed by the Manager, Medical Liaison Office. 

Medical Counsellors 

Counsellors still routinely participate in a pre-hearing review process to assess whether 
the medical record is complete and contains appropriate medical investigation and 
reporting. This process may result in the Tribunal Counsel Office advising the par- 
ties that the following additional medical investigation may be of assistance to the 
Panel: 

1) filling of gaps in medical reporting; 

2) clarification of findings, etc., from reporting physicians; 

3) medical discussion papers or general information specific to the medical 
condition in that appeal; 

4) independent medical information from one of the Tribunal's section 86h 
assessors. 



Page 20 



Annual Report 1990 



In addition to the above activities, Counsellors continue to monitor the sufficiency 
and quality of the Tribunal's Medical Assessor roster. Appointments of some of the 
leading practitioners in several highly specialized areas of medicine were initiated 
thisyearon Counsellor recommendation to ensure that the Tribunal is aware of emerg- 
ing generic issues from a medical professional's perspective. 

Counsellors participate in an internal review process which assesses the manner in 
which medical fact or theory is treated and recorded by lay adjudicators. Through 
an evaluation of released decisions, the Tribunal is able to evaluate its processes and 
practices as they relate to medical issues and medical evidence, and to evaluate its 
understanding of medical issues and evidence. 

Sadly, one of the Tribunal's original Counsellors, Dr. Jack Soper Crawford (Ophthal- 
mology), passed away in June 1990. Dr. Crawford had participated in several 
in-house lectures on eye diseases and injuries, and was responsible for developing 
the high quality of Ophthalmology Assessors on the 86h roster. Dr. Crawford's re- 
placement beginning January 1991 is Dr. John Speakman. Dr. Speakman is 
Professor, Department of Ophthalmology at the University of Toronto, Staff Oph- 
thalmologist at Sunnybrook Medical Centre and Senior Staff Ophthalmologist at 
Toronto Hospital (Toronto General Division). 

Medical Assessors 

Of the Tribunal's original 21 Assessors appointed to the 86h roster in June 1987, all 
agreed to re-appointment this year with the exception of one who left Canada and 
one who retired. This brings the total number of Assessors, including those currendy 
in the appointment process, to 163. 

With respect to diseases associated with the workplace, the Tribunal is very pleased to 
have on its roster two physicians who oversee occupational health centres at uni- 
versity-affiliated teaching hospitals — St. Michael's Occupational and 
Environmental Health Unit (associated with the University of Toronto), and Mc- 
Master Medical Centre, Occupational Health Clinic (through McMaster 
University, in Hamilton). These centres broaden the Tribunal's access to many spe- 
cialized professionals such as toxicologists, industrial hygienists, chemists, etc., who 
are highly experienced clinicians and academics. 

A similar multi-disciplinary team of practitioners is available to the Tribunal through 
the Irene Smythe Pain Clinic at the Toronto Hospital (Toronto General Division) 
and the Pain Investigation Unit at Toronto Western Hospital, two of Canada's lead- 
ing facilities for research into the understanding and treatment of pain. The directors 
at both of these centres are on our 86h roster. 

A selection of some of the more complex medical issues that were considered by the 
Tribunal this year is reported elsewhere in this report. Beginning this year, our library 
will have all substantial medical reports and literature reviews conducted by 86h 
Assessors. It is hoped that this information will provide researchers with a wealth 
of medical information and examples ofhow this information is treated and recorded 
in Tribunal decisions. 



Post-hearing Legal Workers 

When the panel identifies that additional information is required after a hearing, a 
request is made to the post-hearing legal workers, who co-ordinate this continuing 
investigation. The post-hearing legal workers report direcdy to General Counsel 
through a group leader. 



Page 21 



Annual Report 1 990 



INFORMATION DEPARTMENT 

The Information Department has responsibility for the Publications and Library func- 
tions of the Tribunal, offering information-related services to Tribunal staff, 
members and the general public. 

Publications 

The Decision Digest Service (DDS) was successfully introduced in 1990. It contains 
the summaries for all Tribunal decisions released since December 15, 1989. The 
summaries can be accessed either by subject matter (through the Keyword Index) 
or by section of the Act and its regulations (through the Annotated Statute). For 
1991, additions to the Cumulative Index binder, which forms part of the DDS, 
will result in the various keyword index and annotated statute segments of the DDS 
being extended to cover all of the decisions released since the Tribunal's inception 
in 1985. The Keyword Guide will also be added to the Cumulative Index binder 
in 1991. 

This increased availability of the Keyword Index and the Keyword Guide has given 
us cause to place greater emphasis on the continuing review and refinement of the 
keyword terms to ensure consistency in the classification of Tribunal decisions. 

The headnotes of Tribunal decisions published in the W.C.A. T Reporter wow appear 
in French as well as in English. Arrangements have been made with the WCB that 
allow for the publication, in the Reporter, of reviews of Tribunal decisions under- 
taken by the WCB Board of Directors, pursuant to section 86n of the Workers' 
Compensation Act. 

Publication of a Tribunal newsletter, WCAT In Focus, began in 1990. In addition to 
allowing the Tribunal to communicate more effectively with its various interest 
groups, the newsletters wide circulation has led to a greatly increased readership for 
other Tribunal publications such as the Compensation Appeals Forum, the Annual 
Report and Researching Workers' Compensation Appeals Tribunal Decisions. 

The brochure, A Straightforward Guide to the Workers' Compensation Appeals Tribunal 
has proven to be very popular, with some 10,000 copies in print. The wider circu- 
lation of this brochure has been facilitated by distribution arrangements with CLEO 
(Community Legal Education Ontario) and the Workers' Compensation Board. 

The Information Department proposes to make staff available to hold training sessions 
on how to research Tribunal decisions, using Tribunal publications. Such sessions 
could be held throughout the province as demand and numbers warrant. 

Library Highlights 

Book Catalogue 

Access to the book collection was improved through the following initiatives: the gov- 
ernment publications collection was reclassified and integrated with the main 
collection; both the subject cataloguing and classification policies were reviewed and 
necessary revisions made; records from all documents were updated to conform with 
the new standards. 



Page 22 



Annual Report 1990 



Acquisitions 

During the year, 330 books and government documents were added to the collection, 
1 ,694 records were added to the library file database, 274 records were added to a 
caselaw database. 

Periodicals 

The library's records of periodical acquisitions were transferred from a card system to 
a computer database. 

Periodicals being received in the Systems Department were integrated into the library 
collection and extra shelving added to accommodate them. 

Interlibrary loan (ILL) 

Nine hundred and six items were obtained using ILL. 

Caselaw 

The library's collection ofTribunal decisions was rehoused in permanent and distinctive 
binders with an improved tab system for locating individual decisions. 

The collection of court decisions dealing with workers' compensation and adminis- 
trative law was also transferred into permanent binders and the caselaw database is 
being updated to provide exact location information. 



SYSTEMS DEPARTMENT 

Changes in senior management structure at the Tribunal during 1 990 affected xhe Sys- 
tems Department through the creation of the position of Chief Information Officer. 
The Systems Manager now reports to the CIO. The Chief Information Officer is 
responsible for the overall direction and strategic planning of the Tribunal's infor- 
mation technology resources. 

As of the end of 1990, the Systems Department was in the final stages of completing 
a plan for the Tribunal's future use of information technology, a business case in 
support of a 1991 upgrade in the Tribunal's hardware resources and a plan for the 
1991 installation of a case tracking system. 

Overall, the Tribunal is making efficient use of its current technology and planning 
for the future in ways that will make use of the current investment in systems. 



FRENCH LANGUAGE SERVICES 

The Tribunal has completed the integration of French language services throughout 
most of its operation, with the exception of some reference materials. On staff in 
Reception, Intake and TCO are qualified persons who are able to answer French 
inquiries and handle French-speaking appellant's files among their regular functions. 
All hearing documentation, including application forms, general information and 
practice directions, is available in French and summaries of cases are translated into 
French for French language hearings. The Tribunal employs a full-time translator. 
French-speaking Panels are available for hearings which are conducted in French at 
the request of the appellant in accordance with the provisions of the French Language 
Services Act. 



Page 23 



Annual Report 1 990 



YEAR END STATISTICAL SUMMARY 

Introduction 

There are five sections in this statistical summary. The first is a brief overview detailing 
the Tribunal's history in terms of files received, files closed, and the inventory of 
files yet to be completed as at December 31, 1990. The second section provides a 
more detailed view of the cases received and cases closed. The third section focuses 
on the Tribunals hearings and decision production for the year, examining both 
cases and total numbers of hearings and decisions. (This is an important distinction, 
since for any given case there may be one hearing or more, and for each hearing, 
there may be one decision or more.) It begins with an accounting of the hearings 
that were conducted, then of the cases closed at the pre- and post-hearing stages. 
There is then a further accounting of the decisions released. Finally, this section 
examines the time taken to resolve appeals, particularly in light of the Tribunal's 
four-month "turnaround" objective. The fourth section outlines the types of rep- 
resentatives appearing for parties at hearings, and the fifth section presents an 
accounting of the year-end case inventory. 

Overview 

The Tribunal was established in October of 1985 and by December 31 of that same 
year, 1,057 files had been received. Ten of these files were completed by year end 
and the remaining files were carried over into the next year of operation. In 1986, 
an additional 2,089 files were received. During this first full year of operation, 646 
files were completed. The number of files in inventory (unresolved cases) had there- 
fore reached approximately 2,500 by December 31, 1986. 

In 1987, the Tribunal began to eliminate some of this cumulative inventory. The Tri- 
bunal closed 1 8 files more than it opened ( 1 ,765 files were received and 1,783 were 
closed). In 1988, 1,559 were received and 2,022 were closed. The cumulative in- 
ventory was thus reduced by 463 in 1988. In 1989, there were again more files 
completed (2,0 1 6) than received (1,616) and the inventory was reduced by another 
400 cases. In 1990, the number of files completed (1 ,578) was also larger than the 
number of files received (1,516) and the cumulative inventory was reduced again 
(by a total of 62 cases). (See Figure 2) 

The average "open age"of all cases received in 1990 (time elapsed since intake work 
was completed, excluding cases subject to the WCB chronic pain review process) 
was 177 days. This was slightly higher than for the average open age of cases that 
were received in 1989 and were in the 1989 year end inventory (139 days). 

Incoming Cases and Cases Closed 

Incoming Cases 

The pattern of incoming cases for 1 990 was very similar to the pattern displayed in 
the previous two years. In general terms, appeals relating to entitlement to workers' 
compensation benefits (entitlement and "other" appeal types) accounted for the ma- 
jority of cases (56 per cent), cases relating to specific sections of the Workers' 
Compensation Act accounted for 33 per cent and "post-decision" issue cases (re- 
quests for reconsideration of earlier decisions, Ombudsman inquiries and judicial 
reviews) accounted for the remaining 1 1 per cent. (See Figure 3) 



Page 24 



Annual Report 1990 



FIGURE 2 



INCOMING FILES AND FILES COMPLETED 



o.uuu 




2,500 












2,000 








» 

• 
♦ 






-•-. 


X 




1,500 




















« 
• 


• 
• 


















1,000 








500 




^ 


4 

* 



* 

* 

■*,.-■ 

i 


-* 


i 




i 




i 


I 





1985 
RECEIVED 



1986 1987 

CLOSED CLOSED 



1988 1989 

CLOSED 



1990 



(TOTAL) (After Hearing) (Before Hearing) 



INVENTORY 



i i 



FIGURE 3 



INCOMNG CASELOAD BY TYPE 






11.2% 


55.5% 


M - m$^ ^ 




I Entitlement 




\ \ 




□ Special Section 








□ Post-decision Issue 








^33.2% 




Post-decision issues include reconsideration applications, 

Ombudsman's inquiries and judicial review cases. 

Entitlement includes other related issues and no-jurisdiction cases. 



Page 25 



Annual Report 1 990 



FIGURE 4 



ANNUAL BREAKDOWN OF INCOMING CASES 


1987 


1988 


1989 


1990 


Total (All Years*) 


Type Number (%) 


Number (%) 


Number (%) 


Number (%) 


Number 


(%) 


Section 86o 115 6.5 


78 5.0 


46 2.8 


42 2.8 


642 


6.7 


Section 15 101 5.7 


89 5.7 


89 5.5 


120 7.9 


542 


5.6 


Section 21 79 4.5 


82 5.3 


66 4.1 


51 3.4 


339 


3.5 


Section 77 298 16.9 


258 16.5 


295 18.3 


283 18.7 


1.310 


13.6 


Section 77 (Objection) 14 0.8 


10 0.6 


10 0.6 


8 0.5 


66 


0.7 


Special Section 607 34.4 


517 33.2 


506 31.3 


504 33.2 


2,899 


30.2 


Pension 119 6.7 


44 2.8 


40 2.5 


20 1.3 


568 


5.9 


Commutation 24 1 .4 


38 2.4 


35 2.2 


16 1.1 


117 


1.2 


Employer Assessment 17 1.0 


33 2.1 


26 1.6 


26 1.7 


142 


1.5 


Entitlement 833 47.2 


707 45.3 


686 42.5 


752 49.6 


4,757 


49.5 


Entitlement & Other 993 56.3 


822 52.7 


787 48.7 


814 53.7 


5,584 


58.2 


Judicial Review 6 0.3 


4 0.3 


2 0.1 


10 0.7 


25 


0.3 


Ombudsman's Request 60 3.4 


84 5.4 


108 6.7 


82 5.4 


345 


3.6 


Reconsideration 50 2.8 


75 4.8 


102 6.3 


78 5.1 


330 


3.4 


Clarification 1 0.1 


2 0.1 


1 0.1 


0.0 


4 


0.0 


Post-decision 117 6.6 


165 10.6 


213 13.2 


170 11.2 


704 


7.3 


No-jurisdiction 48 2.7 


55 3.5 


110 6.8 


28 1.8 


415 


4.3 


TOTAL INCOMING 1,765 


1,559 


1,616 


1,516 


9,602 




* Note: The Total (All Years) represents all cases 


including those received prior to January 


1,1987. 







As one might expect, the number of post-decision cases had been gradually increasing 
in number, to the point where, in 1 989, they represented 1 3 per cent of all incoming 
cases. (The workers' compensation legislation permits applications to reconsider 
or review decisions, therefore it follows that these kinds of requests would increase 
as the number of decisions increased.) This year's number of post-decision cases 
(170) represented a slightly reduced proportion of all cases received in 1990 (1 1 per 
cent). It is also interesting to note that in 1990, the proportion of entitlement ap- 
peals, actually increased by 5 per cent over the previous year's level, thereby reversing 
another trend. In 1985, en ti dement appeals represented 82 per cent of all cases 
however, by 1989, entitlement appeals had decreased steadily to 49 per cent of in- 
coming cases. In 1990, however, entitlement appeals had increased again to 54 per 



cent. 



At is interesting as well to note that in 1990 the Tribunal experienced the lowest per- 
centage of no-jurisdiction cases (less than 2 per cent of all incoming appeals). In 
1989, this case type had represented nearly 7 per cent of all incoming cases. However, 
this recent reduction mainly reflects the renewed efforts of the Tribunal's Intake De- 
partment to provide potential appellants with more, and earlier, information about 
the appeal process, the nature of the Tribunal and the Tribunal's jurisdiction. 
(See Figure 4) 



Page 26 



Annual Report 1990 



FIGURE 5 



ANNUAL BREAKDOWN OF CASES CLOSED 



Type 

Section 860 
Section 15 
Section 21 
Section 77 

Section 77(Objection) 
Special Section 

Pension 
Commutation 
Employer Assessment. 
Entitlement 
Entitlement & Other 

Judicial Review 
Ombudsman's Request 
Reconsideration 
Clarification 
Post-decision 



1987 
Number (%) 



235 
144 

88 
348 

24 
839 

19 
7 

18 
777 
821 46.0 



13.2 
8.1 
4.9 

19.5 
1.3 

47.1 

1.1 

0.4 

1.0 

43.6 



3 

17 
39 


59 



0.2 
1.0 
2.2 
0.0 
3.3 



1988 
Number (%) 



127 
99 
87 

288 
15 

616 

91 

26 

26 

1,097 

1,240 

2 

53 
52 

3 
110 



6.3 
4.9 
4.3 

14.2 
0.7 

30.5 

4.5 

1.3 

1.3 

54.3 

61.3 

0.1 
2.6 
2.6 
0.1 
5.4 



1989 
Number (%) 

120 6.0 

79 3.9 

73 3.6 

230 11.4 

7 0.3 

509 25.2 



123 

46 

24 

1,015 

1,208 



6.1 

2.3 

1.2 

50.3 

59.9 



5 0.2 

82 4.1 

104 5.2 

0.0 

191 9.5 



No-jurisdiction 64 3.6 56 2.8 108 5.4 

TOTAL CLOSED 1,783 2,022 2,016 

*Note: The Total (All Years) represents all cases, including those received prior to January 1, 1987 



1990 


Number (%) 


54 


3.4 


118 


7.5 


45 


2.9 


296 


18.8 


7 


0.4 


520 


33.0 


100 


6.3 


29 


1.8 


28 


1.8 


685 


43.4 


842 


53.4 


3 


0.2 


101 


6.4 


78 


4.9 


1 


0.1 


183 


11.6 


33 


2.1 


1,578 





Total (All Years* 

Number (%) 

595 7.4 

466 5.8 

322 4.0 

1,203 14.9 

54 0.7 

2,640 32.8 

340 4.2 

108 1.3 

104 1.3 

3,904 48.5 

4,456 55.3 

13 0.2 

254 3.2 

278 3.5 

4 0.0 

549 6.8 

410 5.1 

8,055 



Cases Closed 

When the disposition of cases is examined by appeal type some interesting observations 
may be noted. The proportions of cases closed in 1990 in the special section and 
entitlement groups were representative of their overall proportions for all years com- 
bined. Special section cases represented 33 per cent of all cases closed in 1990 
compared with an overall average of 32.8 per cent. Entitlement appeal types rep- 
resented 53 per cent in 1990 compared with 55 per cent for all years combined. 
By contrast, the proportions of cases closed in 1990 in the post-decision and no- 
jurisdiction appeal categories were not representative of their overall proportions 
for all years combined. Post-decision issue cases represented nearly 1 2 per cent of 
all cases closed in 1990 compared with 7 per cent of all years combined. It is clear 
from the data that post-decision cases have been gradually increasing in proportional 
terms over the years. Interestingly, for no-jurisdiction cases, the trend has been in 
the opposite direction. No-jurisdiction cases represented approximately 2 per cent 
of cases closed in 1990 compared with an overall average of 5 per cent. 
(See Figure 5) 



Page 27 



Annual Report 1 990 



FIGURE 6 



CASES HEARD AT THE TRIBUNAL 


NEW CASES: Oral Hearings 


867 




Written Submissions 


160 




Motions Days 


58 


1,085 


POST-DECISION CASES: Oral Hearings 


12 




Written Submissions 


3 




Panel Reviews 


63 


78 


TOTAL HEARINGS CONDUCTED: 




1,163 



1 990 Production Measures 

Hearings 

In 1990, 1,085 new cases went to hearing(s). For most cases, oral hearings were con- 
ducted (867, or 80 per cent). Written submissions replaced oral hearings in 160 
cases (15 per cent), and "Motions Days" (58, or 5 per cent) accounted for the re- 
maining new case hearings. In addition, there were 78 post-decision cases heard. 
Twelve of these post-decision cases received oral hearings (15 per cent) and 3 (4 per 
cent) were dealt with by written submissions. The remaining 63 (8 1 per cent) did 
not have formal hearings, but were nonetheless deliberated upon by WCAT panels. 
There were, therefore, a total of 1,163 hearings in 1990. (See Figure 6) 

Cases Closed 

Closed without hearing 

Approximately one-third of the cases that were completed at the Tribunal in 1 990 did 
not reach the hearing stage (565 of 1,578 completed cases, or 36 per cent). For 
new cases (456) these are largely accounted for by withdrawals (294, or 64 per cent). 

For post-decision cases (109), they are represented largely by Ombudsman cases (93) 
where the issue was not pursued (i.e., where the Ombudsman dismissed the com- 
plaint). In three cases, the complaint was made before the courts in the form of an 
application for judicial review (all three were dismissed), and the remaining post- 
decision issue cases were either withdrawn (11) or closed due to inactivity (two). 
(See Figure 7) 

Closed after a hearing but without a decision 

In 1990, there were 28 cases closed after hearings without formal decisions released 
(2 per cent of cases closed). Most of these (26) were for post-decision cases (recon- 
siderations), of which nearly all (22) were denied. These are the cases where the 
panels concluded on a paper review that the reconsideration request was clearly with- 
out merit and so advised the Tribunal Chair. Formal decisions were not issued. The 
remaining (four) post-decision cases in this category were withdrawn. For new cases, 
both cases were withdrawn during the hearing process. 

These cases were resolved by letters or memoranda rather than by formal decision. 



Page 28 



Annual Report 1 990 



FIGURE 7 



FIGURE 8 



CASES CLOSED WITHOUT A HEARING 




Number 


% 


NEW APPEALS 






Settled 


45 


9.87 


No-jurisdiction 


38 


8.33 


Withdrawn 


294 


64.47 


Inactive 


79 


17.32 


Total 


456 


100.00 


POST-DECISION 






Completed 


96 


88.07 


Withdrawn 


11 


10.09 


Inactive 


2 


1.83 


Total 


109 


100.00 


TOTAL 


565 





CASES CLOSED BY DECISION 




Number 


% 


NEW APPEALS 






Completed 

No-jurisdiction 

Withdrawn 


931 
1 
5 


99.36 
0.11 
0.53 


Inactive 





0.00 


Total 


937 


100.00 


POST-DECISION 






Completed 
Withdrawn 


48 



100.00 
0.00 


Inactive 





0.00 


Total 


48 


100.00 


TOTAL 


985 




Note: Some cases 
and final decisions. 


required both interim 
The total number of 


decisions issued (1,081) therefore exceeds 
the number of cases closed by a decision. 



Closed by decision 

Most of the cases closed at the Tribunal in 1990 were closed by decision (985, or 62 
per cent). For new appeals, 931 were closed by decision, five were withdrawn with 
a formal decision also released, and one was no-jurisdiction with a decision released. 
For post-decision cases, 48 v/ere closed by decision. (See Figure 8) 

Decisions Released 

It is important to recognize that a case may involve more than one decision. For some 
cases, a decision must be rendered on an "interim" issue before a main issue can be 
resolved. This applies to both new appeals and reconsideration requests. However, 
with respect to reconsideration cases, the interim and final decisions are not ac- 
counted for separately in this report. 

In 1990, for new cases, 68 interim decisions and 963 final decisions were released. In 
addition, there were 50 reconsideration rulings. This resulted in a total of 1,081 
decisions released. 



Page 29 



Annual Report 1 990 



Average Case Completion Times 

In 1989, the Tribunal established a average four-month completion time objective for 
appeals. Despite a shortage of adjudicators and a number of vacancies in the Tribunal 
Counsel Office (TCO), it is significant that over half of the appeals received and 
closed in 1 990 were completed within this objective. Some of the work completed 
by the Tribunal in 1990 consisted of cases that had been received in previous years. 
This means that the Tribunal reduced some of its ageing backlog, however, it makes 
it difficult to evaluate the Tribunal's performance relative to the four-month turn- 
around objective. If one considered average completion times only for cases both 
received and completed in 1 990, then the result would underestimate the average 
turnaround time. (The result would be biased by ignoring the more difficult and 
as yet unresolved cases.) If, on the other hand, one considered all cases closed in 
1 990, regardless of when they were opened, one would overestimate the turnaround 
time. (The result would include cases closed that had been in the ageing backlog 
of cases and were thus never subject to the four-month objective.) 

Perhaps the best way to evaluate the Tribunal's performance in relation to the four- 
month turnaround objective is to examine the average times taken in 1 990 for cases 
that entered and exited the various "stages" in the appeal process in 1990 (regardless 
of when they were started at the Tribunal). The sum of the average "stage" com- 
pletion times therefore forms the most accurate estimate of the overall turnaround 
time. The results of the analysis according to the parameters suggested above are 
briefly as follows. 

From the time an appeal arrives at the Tribunal (after all relevant documentation from 
WCB and from the appellant are in place), cases spent, on average, 25 days (the 
references to days is to calendar days) before they were assigned to a case description 
writer. The file then spent 48 days on average in the TCO where the pre-hearing 
preparation of the case occurs. It then required 43 days on average, for a scheduling 
date to be achieved. This reflects the time required to determine a date acceptable 
to the parties. Cases that went through the hearing process then required approxi- 
mately 63 days before the final hearing took place. For some cases, there were 
additional hearings required. On average, a decision was completed 60 days after 
the last hearing had taken place. This time included decision writing as well as the 
time required for further post-hearing work after the hearing was completed. 

For appeals that required this full administrative and adjudicative process, therefore, 
the average total time required in 1 990 was approximately 239 days (just under eight 
months). This average clearly exceeds the four-month objective, however, it is in- 
structive to note the length of time cases usually spend in "on hold" stages where 
the time is largely outside of the control of the Tribunal. For example, the average 
time between the scheduling of the hearing date and the hearing date is over two 
months, and is largely influenced by the inherent difficulties of arriving at a hearing 
date mutually acceptable to all parties. Furthermore, the decision processing stages 
often involve a need to consult with individuals in the medical community regarding 
new medical questions that arose at the hearing. The post-hearing process may in- 
volve a need to contact parties, obtain consents, receive advice from medical 
practitioners, and receive submissions from affected parties. (See Figure 9) 



Page 30 



Annual Report 1 990 



FIGURE 9 




AVERAGE "STAGE" COMPLETION TIMES 


APPEAL PROCESSING STAGE 

1 . Preparation for TCO 

2. Pre-hearing Work 

3. Scheduling Activity 

4. Awaiting Hearings 

5. Decision Processing 


AVERAGE DAYS 

25 
48 
43 
63 
60 



Representation at Hearings 

In approximately 40 per cent of cases heard in 1 990, the employers were unrepresented. 
When they were represented, however, this was most often by a lawyer (20 per cent 
of the time), company personnel (13 per cent) or a consultant (6 per cent). The 
OfficeoftheEmployerAdviserwasnamedspecificallyin 5 per cent of cases. "Other" 
and "unknown" types accounted for 7 per cent and 9 per cent of the employer repre- 
sentatives, respectively. 

The Office of the Worker Adviser was the single most common type of worker rep- 
resentative, accounting for 28 per cent of hearings. The worker was unrepresented 
at the hearing only 20 per cent of the time. Lawyers or legal aid accounted for the 
representation at 20 per cent of the hearings, union officials at 14 per cent, con- 
sultants at 4 per cent and Members of Provincial Parliament at 2 per cent. "Other" 
and "unknown" representation accounted for 8 per cent and 5 per cent of hearings, 
respectively. (See Figure 1 0) 



FIGURE 10 



TRIBUNAL HEARINGS REPRESENTATION PROFILE 


EMPLOYER 


% 


WORKER 


% 


No Representation 


40.0 


Office of Worker Adviser 


28.2 


Lawyer 


20.0 


Lawyer or legal aid/asst. 


20.4 


Company Personnel 


13.1 


No Representation 


19.6 


Unknown 


8.6 


Union 


13.7 


Other 


7.2 


Other 


7.6 


Consultant 


5.9 


Unknown 


5.4 


Office of Employer Adviser 


5.2 


Consultant 


3.7 






Member of Provincial Parliament 


1.5 


Total 


100.0 


Total 


100.0 



Page 31 



Annual Report 1990 



FIGURE 11 



STATUS OF OPEN CASES 


A) INACTIVE CASES 








Cases at WCB: 


180 


180 




Cases at WCAT: 








Intake: Awaiting case information 


94 






Pre-hearing: Awaiting hearing date 


209 






Post-hearing: Awaiting resolution 








of interim matter 


58 


361 


541 


B) ACTIVE CASES 








Cases at WCAT: 








Pre-hearing assignment 


101 






Case description writing 


117 






Pre-scheduling 


63 






Scheduling 


124 






Post-hearing 


195 






Decision writing in progress 


217 






File closing 


33 


850 


850 


C) POST-DECISION ISSUES 








Ombudsman review cases 


91 






Requests for reconsideration 


53 






Judicial review 


12 


156 


156 


TOTAL as at December 31, 


1990 




1,547 



Cases in Inventory 

As of December 31,1 990, the Tribunal had received 9,602 cases and had closed 8,055. 
This left 1 ,547 in the total case inventory. 

It is important to note that at the end of 1990 only 850 (55 per cent) of the total cases 
in inventory could be considered "active". An additional 541 cases (35 per cent) 
were "inactive", either in temporary "on hold" stages within the Tribunal (94 at the 
intake stage, 209 scheduled and awaiting their hearing, and 58 awaiting a Tribunal 
decision on an interim matter) or in an indefinite "on hold" stage at the WCB pend- 
ing their review for the chronic pain issue (180). The remaining 156 cases in 
inventory related to post-decision issue requests, where the Tribunal was being asked 
to reconsider earlier rulings (53 cases), or where there was an Ombudsman's inves- 
tigation (91) or judicial review application (12) underway. 

Of the 850 "active" cases, 405 (48 per cent) had not yet reached the hearing stage. Of 
these, 101 had not yet been assigned to lawyers or pre-hearing legal workers in TCO, 
117 were active in TCO with a case description being prepared. Sixty-three had 
not yet been sent to scheduling, and 124 were in the process of being scheduled. 

The remaining 445 (52 per cent) had moved beyond the hearing stage. Most of these, 
(4 1 2) were either at post-hearing work, having a decision prepared, or were recessed 
or adjourned. The remaining cases (33) had decisions written and released and were 
undergoing final file closing procedures. (See Figure 1 1) 



Page 32 



Annual Report 1990 



FINANCIAL MATTERS 

As we present this Annual Report, the Statement of Expenditure for the year ended 
December 31,1 990, which follows, has not yet been subject to audit. A Variance 
Statement also is included. 

In 1990, the accounting firm of Deloitte & Touche completed a financial audit on 
the Tribunal's financial statements for the periods ending March 31,1 988, Decem- 
ber 3 1 , 1 988, and December 31,1 989. The audit reports are included as Appendix 
B, C, and D, respectively. 



FIGURE 12 



STATEMENT OF EXPENDITURE - As at December 31 , 1 990 


As at December 31 , 1990 (in $000's) 








1990 


1990 


Salaries and Wages 


BUDGET 


ACTUAL 






1310 Salaries & Wages - Regular 


5,406.0 


5,012.4 


1320 Salaries & Wages - Overtime 


65.0 


12.4 


1325 Salaries & Wages - Contract 


108.0 


271.3 


1510 Temporary Help - Go Temp. 


12.0 


3.5 


1520 Temporary Help - Outside Agencies 
Total Salaries and Wages 


88.0 


100.8 


5,679.0 


5,400.5 


Employee Benefits 






2110 Canada Pension Plan 




65.9 


2130 Unemployment Insurance 




117.2 


2220 Public Service Pension Fund 




229.6 


2260 Unfunded Liab. - PSPF 




115.6 


2310 Ontario Health Tax 




110.0 


2320 Suppl. Health & Hospital Plan 




31.3 


2330 Long-term Income Protection 




22.7 


2340 Group Life Insurance 




8.6 


2350 Dental Plan 




31.5 


2410 Workers' Compensation 




0.0 


2520 Maternity Supp. Benefit All. 




29.2 


2990 Benefits Transfer 
Total Employee Benefits 




-1.1 


545.0 


760.6 



(Continues) 



Page 33 



Annual Report 1 990 



STATEMENT OF EXPENDITURE (CONTINUED) 


As at December 31, 1990 (in $000's) 








1990 


1990 


Transportation & Communication 


BUDGET 


ACTUAL 






31 10 Courier/Other Delivery Charges 


38.0 


36.6 


3111 Long Distance Charges 


16.0 


14.9 


3112 Bell Tel. - Service, Equipment 


27.0 


28.6 


3113 On-Line Communications 


55.0 


64.6 


3210 Postage 


33.0 


18.2 


3610 Travel - Accommodation & Food 




58.2 


3620 Travel - Air 


143.0 


51.0 


3630 Travel - Rail 




2.8 


3640 Travel - Road 




27.5 


3660 Travel - Conferences, Seminars 


25.0 


20.3 


3680 Travel - Attendance (Hearings) 


53.0 


52.4 


3690 Travel - Professional/Public Outreach 


6.0 


0.3 


3720 Travel - Other 


3.0 


3.1 


3721 Travel - PT Vice-Chair & Reps. 
Total Transportation & Communication 


42.0 


45.0 


441.0 


423.6 


Services 






4124 External Education & Training 


5.0 


0.0 


4130 Advertising - Employment 


10.0 


15.1 


4210 Rentals - Computer Equipment 


152.0 


15.4 


4220 Rentals - Office Equipment 


0.0 


1.0 


4230 Rentals - Office Furniture 


1.0 


0.0 


4240 Rentals - Photocopying 


132.0 


98.1 


4260 Rentals - Office Space 


960.0 


953.0 


4261 Rentals - Other 


1.0 


0.0 


4270 Rentals - Hearing Rooms 


28.0 


28.5 


4310 Data Processing Service 


0.0 


0.0 


4320 Insurance 


0.0 


0.0 


4340 Receptions - Hospitality 


30.0 


33.9 


4341 Receptions - Rentals 


1.0 


0.2 


4350 Witness Fees 


28.0 


17.4 


4351 Process Services - Subpoenas 


8.0 


2.9 


4360 Per Diem Allowances - PT VC & Reps. 


510.0 


550.1 


4410 Consultants - Mgt. Services 


50.0 


60.8 


4420 Consultant - System Development 


40.0 


21.6 


4430 Court Reporting Services 


129.0 


97.4 


4431 Consultants - Legal Services 


40.0 


15.7 


4435 Transcription 


176.0 


146.8 


4440 Med. Fee - Per Diem/Retainer/Rep. 


187.0 


123.9 


4460 Research Services 


0.0 


0.0 


4470 Print - Dec./Newltrs/Pamphlets 


135.0 


85.6 


4520 Repair/Main. - Fumit./Off. Equip. 


110.0 


148.1 


4710 Other - incl. Membership Fees 


60.0 


37.9 


471 1 Translation & Interpret. Ser. 


61.0 


35.3 


471 2 Staff Development - Course Fees 


42.0 


40.8 


4713 French Translation Services 


10.0 


12.6 


4714 Other French Costs 
Total Services 


0.0 


0.0 


2,906.0 


2,542.9 



Page 34 



Annual Report 1990 



STATEMENT OF EXPENDITURE (Continued) 



As at December 31, 1990 (in $000's) 



Supplies & Equipment 

5090 Projectors, Cameras, Screens 

5110 Computer Equip, incl. Software 

5120 Office Furniture & Equipment 

5130 Office Machines 

5710 Office Supplies 

5720 Books, Publications, Reports 

Total Supplies & Equipment 

TOTAL OPERATING EXPENDITURES 

Capital Expenditures 

TOTAL EXPENDITURES 



1990 


1990 


BUDGET 


ACTUAL 


0.0 


0.0 


80.0 


57.7 


25.0 


35.4 


0.0 


0.0 


117.0 


127.7 


50.0 


47.9 


272.0 


268.7 


9,843.0 


9,396.3 


70.0 


53.2 


9,913.0 


9,449.5 



FIGURE 13 



VARIANCE REPORT — 1990 


As at December 31, 1990 (in $000's) 












1990 


1990 


Variance 


Salaries & Wages 


Budget 


Actual 


$ 


% 


5,679.0 


5,400.5 


278.5 


4.9 


Employee Benefits 


545.0 


760.6 


-215.6 


-39.6 


Transportation & Communication 


441.0 


423.6 


17.4 


3.9 


Services 


2,906.0 


2,542.9 


363.1 


12.5 


Supplies & Equipment 


272.0 


268.7 


3.3 


1.2 


Total Operating Expenditures 


9,843.0 


9,396.3 


446.7 


4.5 


Capital Expenditures 


70.0 


53.2 


16.8 


24.3 


Total Expenditures 


9,913.0 


9,449.5 


463.5 


4.7 



Page 35 



Annual Report 1990 



APPENDIX A 



VICE-CHAIRS AND MEMBERS 
ACTIVE IN 1990 



Date of First Appointment 



Full-time 



Chair 




Ellis, S. Ronald 


October 1, 1985 


Alternate Chair 




Bradbury, Laura 


June 1, 1988 


Vice-Chairs 




Bigras, Jean Guy 


May 14, 1986 


Bradbury, Laura 


October 1, 1985 


Carlan, Nicolette 


October 1, 1985 


Kenny, Lila Maureen 


July 29, 1987 


Mclntosh-Janis, Faye 


May 14, 1986 


Moore, John P. 


July 16, 1986 


Onen, Zeynep 


October 1, 1988 


Sandomirsky, Janice R 


July 3, 1990 


Signoroni, Antonio 


October 1, 1985 


Starkman, David K.L. 


August 1, 1988 


Strachan, Ian 


October 1, 1985 


Members Representative of Workers 


Cook, Brian 


October 1, 1985 


Cook, Mary 


November 1, 1990 


Fox, Sam 


October 1, 1985 


Heard, Lome (on leave) 


October 1, 1985 


Lebert, Raymond J. 


June 1,1988 


McCombie, Nick 


October 1,1985 


Robillard, Maurice 


March 11, 1987 



Page 37 



Annual Report 1990 



Members Representative of Employers 



Apsey, Robert 
Barbeau, Pauline 
Chapman, Stanley 
Jago, W. Douglas 
Meslin, Martin 
Nipshagen, Gerry M. 
Preston, Kenneth 



December 11, 1985 
January 15, 1990 
July 16, 1990 
October 1, 1985 
December 11, 1985 
October 1, 1988 
October 1,1985 



Part-time 



Vice-Chairs 

Chapnik, Sandra 
Faubert, Marsha 
Hartman, Ruth 
Lax, Joan L. 
Marafioti, Victor 
Marcotte, William A. 
McGrath, Joy 
Pfeiffer, Byron E. 
Robeson, Virginia 
Sperdakos, Sophia 
Stewart, Susan L. 

Members Representative 

Acheson, Michelle 
Beattie, David Bert 
Drennan, George 
Felice, Douglas H. 
Ferrari, Mary 
Fuhrman, Patti 
Higson, Roy 
Jackson, Faith 
Klym, Peter 
Rao, Fortunato 



March 11, 1987 
December 10, 1987 
December 11, 1985 
May 14, 1986 
March 11, 1987 
May 14, 1986 
December 10, 1987 
March 15, 1990 
March 15, 1990 
May 14, 1986 
May 14, 1986 

of Workers 

December 11, 1985 
December 11, 1985 
December 11, 1985 
May 14, 1986 
May 14, 1986 
May 14, 1986 
December 11, 1985 
December 11, 1985 
May 14, 1986 
February 11, 1988 



Members Representative of Employers 



Clarke, Kenneth 
Gabinet, Mark 
Howes, Gerald 
Jewell, Donna Marie 
Kowalishin, A. Teresa 



August 1, 1989 
December 17, 1987 
August 1, 1989 
December 11, 1985 
May 14, 1986 



Page 38 



Annual Report 1990 



Ronson, John 
Seguin, Jacques A. 
Shuel, Robert 
Sutherland, Sara 



December 11, 1985 
July 1,1986 
August 1, 1989 
December 17, 1987 



VICE-CHAIRS AND MEMBERS — 
RE-APPOINTMENTS 

In 1990, the following full- and part-time Vice-Chairs and Members were 
re-appointed to the Appeals Tribunal for the terms indicated below: 



Date of Re-Appointment Term (in years) 



Full-time 



ice-Chairs 






Bigras, Jean Guy 


December 17, 1990 


3 


Kenny, Lila Maureen 


July 29, 1990 


3 



Members Representative of Workers 

Robillard, Maurice March 1 1 , 1 990 

Members Representative of Employers 

Jago, W. Douglas October 1 , 1 990 

Preston, Kenneth October 1, 1990 



Part-time 



Vice-Chairs 

Chapnik, Sandra 
Faubert, Marsha 
Marahoti, Victor 
McGrath, Joy 



March 11, 1990 
December 10, 1990 
March 11, 1990 
December 10, 1990 



Members Representative of Employers 

Seguin, Jacques A. January 1 , 1 990 

Sutherland, Sara December 17, 1990 



2 1/2 
3 



Page 39 



Annual Report 1 990 



VICE-CHAIRS AND MEMBERS — 
EXPIRED APPOINTMENTS 
AND RESIGNATIONS 

The following is a list of Members who resigned or whose appointments expired 
during 1990. 

Acheson, Michelle, Member Representative of Workers (part-time) 

Carlan, Nicolette, Vice-Chair (full-time) 

Fox, Sam, Member Representative of Workers (full-time) 

Friedmann, Karl, Vice-Chair (part-time) 

Gabinet, Mark, Member Representative of Employers (part-time) 

Lankin, Frances, Member Representative of Workers (part-time) 

Leitman, Marilyn, Vice-Chair (pan-time) 

Sperdakos, Sophia, Vice-Chair (part-time) 

NEW APPOINTMENTS DURING 1990 

Pauline Barbeau 

(Full-time Employer Member) April 2, 1990 

Pauline Barbeau is a Registered Nurse and Occupational Health Nurse who, from 
1988-1990, was employed by the Sudbury General Hospital as its Occupa- 
tional Health Nurse for a staff of approximately 1,100 employees. Her 
responsibilities included the management of the hospital's WCB claims. Prior 
to this position, Ms. Barbeau was the Nursing and Administrative Supervisor 
of Health Services for Lauren tian University for 10 years. 

Stan Chapman 

(Full-time Employer Member) July 16, 1990 

Stan Chapman was the Manager of Health and Safety Programs with the Regional 
Municipality of Halton from 1989 to 1990. From 1972 to 1989, he worked 
for the Regional Municipality of Waterloo, latterly as the Municipality's Re- 
gional Safety Officer, in which position he was responsible for managing the 
Municipality's workers' compensation claims. Mr. Chapman has a direct 
knowledge of the workers' compensation system at both the WCB and Appeals 
Tribunal levels. He was active with the WCB Municipal Users' Group and his 
appointment marks the first appearance of a full-time person with Schedule 2 
experience within our ranks. 



A recommendation for a three-year appointment as a part-time Member 
Representative of Workers is currently being reviewed by the Minister of Labour. 



Page 40 



Annual Report 1990 



Mary Cook 

(Full-time Worker Member) November 1 4, 1 990 

Mary Cook has worked in library services for 22 years and has been actively in- 
volved in the labour movement throughout that time. She was the full-time 
President for CUPE Local 1 996 at the time of her appointment to the Appeals 
Tribunal. Her long-time involvement with the Union, provides her with ex- 
perience with the adjudicative process. 

Faith Jackson 

(Full-time Worker Member) November 1 4, 1 990 

In addition to Faith Jackson's participation as a part-time worker Member at the 
Appeals Tribunal since December 1985, she was a full-time business agent of 
SEIU Local 204 from 1985-1990 and she represented workers for a number 
of years in different forums and capacities. (Ms. Jackson is scheduled to take 
up her full-time appointment on January 14, 1991.) 

Byron P. Pfeiffer 

(Part-time Vice-Chair) March, 11, 1990 

Byron Pfeiffer is an Ottawa-based sole practitioner with a full-time practice con- 
sisting primarily of immigration, criminal and civil law. Mr. Pfeiffer, who is 
bilingual, has a background in administrative law, including workers' compen- 
sation in a legal clinic setting, and provides us with a ready resource for our 
growing hearing load in the Ottawa area. 

Virginia Robeson 

(Part-time Vice-Chair) March 11, 1990 

Virginia Robeson, has worked in various administrative capacities with the On- 
tario Labour Relations Board between 1980 and 1988. Since 1988, she has 
been a part-time mediator/labour relations officer with the Public Service Ap- 
peal Boards, and she also served as a consultant with the Pension Commission 
of Ontario in 1989. 

Janice Sandomirsky 

(Full-time Vice-Chair) July 3, 1990 

Janice Sandomirsky has worked at the Tribunal since 1986, when she was hired 
as anAssistant Counsel to the Chair. In 1988, Janice joined the Tribunal Coun- 
sel Office as Senior Counsel, and was, for several months in 1 989, the (Acting) 
General Counsel. Called to the bar in 1 985, Janice had a year of practice in 
civil and family litigation with Goodman & Carr. Her background in workers' 
compensation pre-dates her call to the bar and includes a year as a Claims Ad- 
judicator with the B.C. WCB and two years as a legal case worker with the 
Central Toronto Community Legal Clinic. 



Page 41 



Annual Report 1 990 



Sarah Shartal 

(Full-time Worker Member) November 14, 1990 

Sarah Shartal, has been active in the labour movement since 1979, when she be- 
came a labour organizer in Israel. She was the Co-ordinator of the Benefits 
Department at the United Food & Commercial Workers, Local 175/633 at 
the time of her appointment. She has been actively involved in workers' com- 
pensation advocacy since 1986 and has represented workers at both the WCB 
and WCAT levels. She has been one of the OFL representatives on the WCB's 
Bilateral Advisory Committee on the Bill 162 Regulations. (Ms. Shartal is 
scheduled to take up her full-time appointment on January 14, 1991.) 

Brief resumes for previously appointed full- and part-time Vice-Chairs and Mem- 
bers are contained in the Third Report and 1989 Annual Report. 



SENIOR STAFF 

The following is a list of the senior staffwho were employed at the Appeals Tribunal 
during the reporting period. 

Counsel to the Tribunal Chair 

Carole Trethewey 
Tribunal General Counsel 

Eleanor Smith 
Chief Information Officer 

Linda Moskovits 
Chief Adrninistration Officer 

Beverley Dalton 
Manager, Financial Administration 

Peter Taylor 

MEDICAL COUNSELLORS 

The following is a list of the Tribunal's Medical Counsellors. 

Dr. Douglas P. Bryce Otolaryngology 

Dr. John S. Crawford Ophthalmology 

Dr. W. R Harris Orthopaedics (Acting) 

Dr. F. H. Lowy Psychiatry 

Dr. Robert L. MacMillan Internal Medicine 

Dr. Thomas P Morley Neurology 

Dr. John S. Speakman Ophthalmology 

Dr. Neil Watters General Surgery 



1 Dr. Crawford passed away during the reporting period and his place on our roster 
was assumed by Dr. Speakman. 



Page 42 



Annual Report 1990 



APPENDIX B 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
MARCH 31, 1988 

Auditors' Report 



To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of Workers' Compensation Appeals Tribunal 
as at March 31, 1988 and the statements of expenditures and Workers' Com- 
pensation Board funding for the year then ended. These financial statements 
are the responsibility of the Tribunal's management. Our responsibility is to 
express an opinion on these financial statements based on our audit. 

We conducted our audit in accordance with generally accepted auditing standards. 
Those standards require that we plan and perform an audit to obtain reasonable 
assurance whether the financial statements are free of material misstatement. 
An audit includes examining, on a test basis, evidence supporting the amounts 
and disclosures in the financial statements. An audit also includes assessing the 
accounting principles used and significant estimates made by management, as 
well as evaluating the overall financial presentation. 

In our opinion, these financial statements present fairly, in all material respects, 
the financial position of the Tribunal as at March 31, 1988 and the results of 
its operations and Workers' Compensation Board funding for the year then 
ended in accordance with the accounting policies described in Note 2 to the 
financial statements. 



Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
February 1, 1991 



Page 43 



Annual Report 1990 



BALANCE SHEET 
As at March 31, 1988 



ASSETS 




Cash 


$ 311,000 


Receivable from 




Workers' Compensation Board 


1 ,444,500 


Accounts receivable 


8,800 




$1,764,300 


LIABILITIES 




Accounts payable and 




accrued liabilities 


$ 364,300 


Operating advance from 




Workers' Compensation Board 


1 ,400,000 




$1,764,300 



Approved on Behalf of the Tribunal 
S.R. Ellis, Chairman 



STATEMENT OF EXPENDITURES 




For the Year Ended March 31, 


1988 




Salaries and wages 




$4,143,600 


Employee benefits 




339,100 


Transportation 






& communication 




394,700 


Services 




2,319,600 


Supplies & equipment 




181,900 


Total operating expenditures 




7,378,900 


Capital expenditures 




1 ,549,600 


Total expenditures 




$8,928,500 



STATEMENT OF WORKERS' COMPENSATION 

BOARD FUNDING 

For the Year Ended March 31, 1988 

Recoverable expenditures $8,928,500 

Reimbursement from WCB 8,103,900 

Change in receivable from WCB 824,600 

Receivable from WCB — beginning of year 619,900 

Receivable from WCB — end of year $1,444,500 



See accompanying notes to financial statements. 
Page 44 



Annual Report 1990 



NOTES TO FINANCIAL STATEMENTS 
March 31, 1988 

1 . General 

The Tribunal was created by the Workers' Compensation Amendment Act, S.O. 
1984, Chapter 58 - Section 32, which came into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial 
and independent manner, appeals by workers and employers from decisions, 
orders or rulings of the Workers' Compensation Board (" WCB") , and any mat- 
ters or issues expressly conferred upon the Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally ac- 
cepted accounting principles except for capital expenditures which are charged 
to expense in the year of acquisition. 

3. Commitments 

The Tribunal has commitments under an operating lease requiring minimum an- 
nual lease payments as follows: 

1989 $ 780,960 

1 990 780,960 

1991 780,960 

1 992 780,960 

1 993 780,960 

1 994 and thereafter 2.40 7.960 

$6.3 12,760 



Page 45 



Annual Report 1990 



APPENDIX C 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
DECEMBER 31, 1988 

Auditors' Report 



To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of Workers' Compensation Appeals Tribunal 
as at December 31, 1988 and the statements of expenditures and Workers' 
Compensation Board funding for the nine month period then ended. These 
financial statements are the responsibility of the Tribunal's management. Our 
responsibility is to express an opinion on these financial statements based on 
our audit. 

We conducted our audit in accordance with generally accepted auditing standards. 
Those standards require that we plan and perform an audit to obtain reasonable 
assurance whether the financial statements are free of material misstatement. 
An audit includes examining, on a test basis, evidence supporting the amounts 
and disclosures in the financial statements. An audit also includes assessing the 
accounting principles used and significant estimates made by management, as 
well as evaluating the overall financial presentation. 

In our opinion, these financial statements present fairly, in all material respects, 
the financial position of the Tribunal as at December 31, 1988 and the results 
of its operations and Workers' Compensation Board funding for the nine 
month period year then ended in accordance with the accounting policies de- 
scribed in Note 2 to the financial statements. 



Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
February 1, 1991 



Page 47 



Annual Report 1 990 



BALANCE SHEET 

As at December 31, 1988 





December 31, 1988 


March 31, 1988 


ASSETS 






Cash 


$ 


$ 311,000 


Receivable from 






Workers' Compensation Board 


2,311,800 


1 ,444,500 


Accounts receivable 


6,100 


8,800 




$2,317,900 


$1,764,300 


LIABILITIES 






Bank indebtedness 


$ 392,900 


$ 


Accounts payable and 






accrued liabilities 


525,000 


364,300 


Operating advance from 






Workers' Compensation Board 


1 ,400,000 


1 ,400,000 




$2,317,900 


$1,764,300 



Approved on Behalf of the Tribunal 
S.R. Ellis, Chairman 



STATEMENT OF EXPENDITURES 



Salaries and wages 

Employee benefits 

Transportation 

& communication 

Services 

Supplies & equipment 

Total operating expenditures 

Capital expenditures 

Total expenditures 



Nine months ended 
December 31, 1988 



Twelve months ended 
March 31, 1988 



$3,390,000 


$4,143,600 


343,800 


339,100 


264,300 


394,700 


1,853,200 


2,319,600 


126,800 


181,900 


5,978,100 


7,378,900 


307,600 


1 ,549,600 


$6,285,700 


$8,928,500 



STATEMENT OF WORKERS' COMPENSATION 
BOARD FUNDING 

Nine months ended 
December 31, 1988 

Recoverable expenditures $6,285,700 

Reimbursement from WCB 5,418,400 

Change in receivable from WCB 867,300 

Receivable from WCB — beginning of year 1 ,444,500 

Receivable from WCB — end of year $2,311,800 



Twelve months ended 
March 31, 1988 

$8,928,500 
8,103,900 

824,600 

619,900 
$1,444,500 



See accompanying notes to financial statements. 



Page 48 



Annual Report 1 990 



NOTES TO FINANCIAL STATEMENTS 
December 31, 1988 

1. General 

The Tribunal was created by the Workers' Compensation Amendment Act, S.O. 
1984, Chapter 58 - Section 32, which came into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial 
and independent manner, appeals by workers and employers from decisions, 
orders or rulings of the Workers' Compensation Board ("WCB"), and any mat- 
ters or issues expressly conferred upon the Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally ac- 
cepted accounting principles.except for capital expenditures which are charged 
to expense in the year of acquisition. 

3. Change of Fiscal Year 

During 1 988 the Tribunal changed its fiscal year end from March 3 1 to December 
31 to correspond with the year end of the Workers' Compensation Board. 

4. Commitments 

The Tribunal has commitments under an operating lease requiring minimum an- 
nual lease payments as follows: 

1989 $ 780,960 

1990 780,960 

1991 780,960 

1 992 780,960 

1 993 780,960 

1 994 and thereafter $1.822.240 

$5,727,040 



Page 49 



Annual Report 1 990 



APPENDIX D 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
DECEMBER 31, 1989 

Auditors' Report 



To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of Workers' Compensation Appeals Tribunal 
as at December 31, 1989 and the statements of expenditures and Workers' 
Compensation Board funding for the year then ended. These financial state- 
ments are the responsibility of the Tribunal's management. Our responsibility 
is to express an opinion on these financial statements based on our audit. 

We conducted our audit in accordance with generally accepted auditing standards. 
Those standards require that we plan and perform an audit to obtain reasonable 
assurance whether the financial statements are free of material misstatement. 
An audit includes examining, on a test basis, evidence supporting the amounts 
and disclosures in the financial statements. An audit also includes assessing the 
accounting principles used and significant estimates made by management, as 
well as evaluating the overall financial presentation. 

In our opinion, these financial statements present fairly, in all material respects, 
the financial position of the Tribunal as at December 31, 1989 and the results 
of its operations and Workers' Compensation Board funding for the year then 
ended in accordance with the accounting policies described in Note 2 to the 
financial statements. 



Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
February 1, 1991 



Page 51 



Annual Report 1990 



BALANCE SHEET 

As at December 31, 1989 



1989 



1988 



ASSETS 

Receivable from 



Workers' Compensation Board 


$2,260,400 


$2,311,800 


Accounts receivable 


8,400 


6,100 




$2,268,800 


$2,317,900 


LIABILITIES 






Bank indebtedness 


$318,400 


$392,900 


Accounts payable and 






accrued liabilities 


550,400 


525,000 


Operating advance from 






Workers' Compensation Board 


1 .400,000 


1 ,400.000 




$2,268,800 


$2,317,900 



Approved on Behalf of the Tribunal 
S.R. Ellis, Chairman 



STATEMENT OF EXPENDITURES 



Salaries and wages 

Employee benefits 

Transportation 

& communication 

Services 

Supplies & equipment 

Total operating expenditures 

Capital expenditures 

Total expenditures 



Twelve months ended 


Nine months ended 


December 31, 1989 


December 31, 1988 


$4,656,300 


$3,390,000 


447,800 


343,800 


417,300 


264,300 


2,633,900 


1,853,200 


193,600 


126,800 



8,348,900 

148,500 

$8,497,400 



5,978,100 

307,600 

$6,285,700 



STATEMENT OF WORKERS' COMPENSATION 
BOARD FUNDING 



Twelve months ended 
December 31, 1989 



Nine months ended 
December 31, 1988 



Recoverable expenditures $8,497,400 

Reimbursement from WCB 8,548,800 

Change in receivable from WCB (51 ,400) 

Receivable from WCB — beginning of year 2,311,800 

Receivable from WCB — end of year $2,260,400 

See accompanying notes to financial statements. 



$6,285,700 

5,418,400 

867,300 

1 ,444,500 

$2,311,800 



Page 52 



Annual Report 1990 



NOTES TO FINANCIAL STATEMENTS 
December 31, 1989 

1. General 

The Tribunal was created by the Workers' Compensation Amendment Act, S.O. 
1984, Chapter 58 - Section 32, which came into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial 
and independent manner, appeals by workers and employers from decisions, 
orders or rulings of the Workers' Compensation Board ("WCB"), and any mat- 
ters or issues expressly conferred upon the Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally ac- 
cepted accounting principles except for capital expenditures which are charged 
to expense in the year of acquisition. 

3. Comparative figures 

During 1 988 the Tribunal changed its fiscal year end from March 3 1 to December 
31 to correspond with the year end of the Workers' Compensation Board. 

4. Commitments 

The Tribunal has commitments under an operating lease requiring minimum an- 
nual lease payments as follows: 

1990 $ 780,960 

1991 780,960 

1992 780,960 

1 993 780,960 

1 994 780,960 

1 995 and thereafter $1.041,280 

$4,946,080 



Page 53